Short-Term Rentals: The Current State of the Law

 Bridget M. Rose 

Short-term rentals (“STRs”) have long existed as an option for vacation, work travel, or simply to avoid having to crash with the in-laws when visiting family. The internet, on the other hand, and sites

such as Airbnb, Vrbo, HomeAway, and other platforms that make it easy for property owners to list their home for rent and effortless for consumers to book their stay, are relatively new in the scheme of things. Short-term rental listing services, such as Airbnb, are associated with the real estate industry because of the service they provide. However, these platforms, which underpin the short-term rental industry as we know it, are worlds away from the everyday operations of owning and renting a short-term rental property.

Understanding the current state of the law is a useful tool for considering the STR regulations and restrictions in your own community.

Currently, there is no federal law directly governing STRs, and the problems faced by communities and property owners dealing with short-term rentals are principally legislated and regulated only at the state and municipal levels. This past summer, many cities across the country, including Boston, were asked to reconsider certain local and statewide regulations on STRs in advance of an unprecedented level of demand for the World Cup. Some cities that have relatively strict restrictions were asked by STR listing platforms to weaken or temporarily suspend regulations in anticipation of increased demand. Boston was no different; in early 2026, Airbnb asked the City of Boston to temporarily loosen the restrictions on STRs to provide more lodging for the World Cup.

Since there is no federal law directly controlling the industry of STRs, and there are often unique state and municipal laws and regulations, a global company such as Airbnb faces different regulations between cities and states. Boston, perhaps unsurprisingly, has relatively stringent restrictions on STRs, including liability insurance requirements, occupancy taxes, an owner-occupancy requirement, a requirement that any short-term rental property be registered with the City, and an annual fee that varies with the type of rental. Additionally, the Boston ordinance, “An Ordinance Allowing Short-Term Residential Rentals in the City of Boston,” imposes reporting and enforcement requirements on STR platforms. Though Boston did not relax its STR regulations for the sake of its status as a host city for this summer’s World Cup events, it nevertheless saw a significant increase in short-term rental reservations over the course of the tournament.

Short-term rentals are almost always a timely topic of discussion for condominiums—whether to allow them, what restrictions to put on unit owners who want to list a unit for short-term rental, and how to enforce the condominium’s rules and community standards as to short-term renters. Understanding the current state of the law is a useful tool for considering the STR regulations and restrictions in your own community.

Present State of the Law

At the nationwide level, there are no federal laws directly regulating the short-term rental industry. A few states have general requirements that apply to short-term rentals state-wide. Many towns and municipalities, particularly vacation towns such as beachfront or ski towns in New England, have local restrictions and zoning ordinances to regulate STRs in the town. Condominium and homeowners associations have significant power to restrict STRs by way of the governing documents. Some associations impose outright bans on short-term rentals, while others impose rules such as minimum duration of stay.

 

Some towns and municipalities control the quantity and locations of STRs by amending local zoning ordinances to define the use as either business or residential. Vacation communities, such as waterfront and ski communities, often have ordinances requiring registration, application fees, and parking requirements, so the town can keep track of how many properties are available for short-term rental and where they are located. Larger cities may have different priorities, such as preventing corporate entities from monopolizing the short-term rental market (as demonstrated by the owner-occupancy requirement in Boston).

Laws, ordinances, and regulations like the ones described above generally seek to balance governmental concerns, such as tax implications, economic and tourism impacts, and housing availability, with the problems faced by community members, such as disruption to the neighborhood, parking availability, and affordability of real estate for would-be homebuyers. However, not even one of these laws directly regulates the most powerful players in the short-term rental industry: the listing service platforms.

Why Not Just Legislate at the Source?

At the center of the short-term rental industry are companies like Airbnb, which provide an online platform for homeowners to list property for short-term rental. Airbnb has expanded the short-term rental market, making it difficult for states, towns, and community associations to regulate STRs on such a large scale. In particular, condominium associations often run into problems because owners and renters deal exclusively with Airbnb, and the association is completely left out of a transaction in which it has a vested interest. Airbnb may require a property owner to confirm that the listing complies with any applicable regulations, but it does not have any incentive to actually ensure compliance. So, why not just enact a federal law that makes Airbnb responsible for listing a short-term rental that violates local law or condominium association regulations?

The Communications Decency Act, 47 U.S.C. § 230 (“Section 230”), is the law which provides “limited federal immunity to providers and users of interactive computer services.” Under Section 230, internet service providers generally cannot be held legally responsible for information provided by users. Like any other internet platform, short-term rental listing services enjoy protection under Section 230, which generally shields these sites from liability for misinformation, such as a misleading property description, a problem with the property, or a condominium unit owner who lists their unit in violation of the association’s governing documents. The company may have a moral or financial incentive to issue a refund for a sketchy property description or undisclosed damage to the property, but, under Section 230, they generally have no legal responsibility.

Responsibility of Short-Term Rental Listing Services

At this time, it does not seem likely that we will see any major changes to federal regulation of short-term rental listing services, like Airbnb, in the near future. In Section 230’s history, proposed federal legislation to amend the law has been generally unsuccessful, and courts have, in practice, interpreted Section 230 immunity to be almost unlimited. It is possible that a federal law amending Section 230 would create more legal responsibility for a platform like Airbnb. In 2019, the House of Representatives introduced H.R. 4232, the “Protecting Local Authority and Neighborhoods Act,” which proposed amending Section 230 to allow certain claims against Airbnb and other short-term rental listing services; however, the proposed legislation was never enacted and has yet to be reintroduced. Although leaders on both sides of the political aisle have expressed disapproval of Section 230’s broad, limitless protections, proposed changes to the law have generally not garnered enough support to legislate any change.

Unlike the current state of the law at the federal level, and by way of example, the City of Boston’s short-term rental ordinance does allow certain reporting and enforcement responsibilities for STR platforms. Under the Boston ordinance, the Commissioner of the Boston Inspectional Services Department can enter into agreements with listing services for assistance in enforcing the provisions of the ordinance, including asking the listing service to remove the listing if it violates the City’s regulations. The ordinance also requires listing services to provide monthly reports on listings located in Boston.

Many condominium associations impose certain restrictions on STRs to protect the standards for the community and the wellbeing of residents. Although there is currently no federal law governing STRs or regulating STR listing service platforms, many of the complexities of the short-term rental industry are problems presented by the huge scale of the internet-based short-term rental industry. Knowing what regulations on STRs have already been enacted on the state and local level can help condominium associations consider what additional restrictions might be desirable to promote the safe and efficient management of short-term rentals in their own communities.

Bridget is a Co-chair of REBA’s New Lawyers Section and its Diversity, Equity, Inclusion and Belonging Section.  She is in associate in the Quincy-headquartered law firm of Moriarty, Bielan & Gamache LLC, practicing in the firm’s real estate and litigation departments.  She can be contacted at brose@mbgllc.com.

 

SJC (Massachusetts) Decision Bolsters Eminent Domain Authority

 Stephen M. Wiseman 

Last September, SJC issued an important decision concerning the scope of eminent domain authority in the case titled Town of Nahant v. Northeastern University. Reversing a Superior Court decision that had invalidated the Town of Nahant’s proposed taking of

property owned by Northeastern University, the SJC reaffirmed the considerable deference afforded to municipalities exercising eminent domain for a legitimate public purpose. Perhaps more significantly, the Court clarified the circumstances in which a taking may be invalidated as having been undertaken in bad faith to prevent a particular development.

Courts will instead look to whether the asserted public purpose is legitimate and whether the property rights being acquired will actually be used to accomplish the stated purpose.

Background

The case arose from Northeastern’s plans to expand its Marine Science Center on East Point in Nahant. Northeastern owns approximately 20 acres on East Point, portions of which have historically remained undeveloped. The Town owns neighboring property that has long served as a public park.

In 2018, Northeastern announced plans to expand its campus, including construction of a new, 55,000 square foot building and associated improvements. The proposal generated substantial opposition from Town officials and residents, who raised concerns regarding conservation, wildlife, traffic, infrastructure, public safety, and the effect of the development on the scenic character of East Point.

The Town thereafter began exploring the potential of exercising eminent domain over a portion of Northeastern’s property. In 2021, the Board of Selectmen were authorized at a town meeting to acquire easement rights over portions of Northeastern’s property for open space, recreation, conservation, historic preservation, and beach purposes. The proposed taking covered approximately twelve acres and would prohibit new buildings within the easement areas, thereby preventing construction of Northeastern’s proposed building.

The Town subsequently filed a petition in Superior Court seeking to establish its right to take the easements, which Northeastern challenged. One of Northeastern’s arguments, which is the subject of the recent SJC decision, was that the Town’s stated conservation purposes were pretextual and that its true purpose was simply a bad faith effort to stop Northeastern’s development.

The Superior Court agreed with Northeastern, relying heavily on the SJC’s prior 1987 decision in the case titled Pheasant Ridge Associates Limited Partnership v. Burlington. In that case, a municipality purported to take property for parks, recreation, and affordable housing after a proposed development generated opposition, but the record demonstrated that those stated purposes were effectively invented to justify the taking and were not purposes for which the municipality actually intended to use the property. In the Superior Court, the court concluded that the “dominant reason” for the taking was to prevent Northeastern’s project and that the Town therefore acted in bad faith, and dismissed the eminent domain petition. As a result, the Superior Court dismissed the Town’s petition and awarded Northeastern more than $1 million in attorneys’ fees, expert fees, and costs.

 

The SJC Decision

In a decision issued in September, the SJC reversed the decision of the Superior Court. The SJC first emphasized that the concept of a “public purpose” is construed broadly and that courts traditionally afford substantial deference to legislative determinations regarding the use of eminent domain. The SJC concluded that preserving property as open space and protecting its conservation, scenic, and recreational values were not merely permissible public purposes, but “quintessential” ones.

The more difficult issue was whether the taking was nevertheless invalid because the Town only pursued eminent domain in response to Northeastern’s proposed development, and the record contained considerable evidence that Town officials and residents wanted to stop the project. The SJC concluded that this evidence did not establish bad faith. The SJC distinguished Pheasant Ridge, finding that the circumstances which caused the eminent domain petition to be dismissed in that case – namely, invoking eminent domain as a pretext for blocking the development, failing to follow the usual procedures for approval of eminent domain, and failing to establish that the property would actually be used for the purposes articulated by the town – were not present here.

In this case, the SJC took into account the fact that the Town had a longstanding interest in East Point as an area for conservation and recreation, reflected in decades of municipal plans and actions. More importantly, the easements the Town proposed to acquire would actually accomplish the stated purposes that the property would be preserved from development and available for conservation, recreation, and public access. Accordingly, the fact that preventing Northeastern’s project prompted the taking did not make the Town’s stated conservation purpose pretextual or evidence bad faith.

The SJC also rejected Northeastern’s argument that the taking was improper because private parties opposing the project had advocated for and financially supported the Town’s efforts. The SJC ruled that taking undertaken for a legitimate public purpose does not become invalid merely because private parties request it, help fund it, or incidentally benefit from it.

Practical Implications

The most significant aspect of the decision may be the SJC’s clarification of the limited role that a municipality’s underlying motivations play in evaluating an eminent domain taking. The decision does not eliminate the possibility of challenging a taking as pretextual or undertaken in bad faith. The decision also did not overturn the holding of Pheasant Ridge, and a municipality cannot simply identify a facially legitimate public purpose as grounds for a taking when it has no genuine intention of using the property for that purpose. Additionally, towns must be sure to follow proper protocols in invoking eminent domain.

However, the SJC’s decision establishes a significant distinction between the reason a municipality decides to act and the purpose for which the property is actually taken. A municipality may become interested in acquiring property precisely because a proposed development threatens open space, conservation resources, scenic character, or another legitimate public interest. The fact that stopping that development is an immediate objective does not necessarily make the resulting taking improper.

For property owners and developers, this makes a bad-faith challenge to eminent domain considerably more difficult where the proposed taking itself will genuinely accomplish a recognized public purpose. Evidence that municipal officials strongly opposed a development, or even expressly stated an intention to stop it, will likely not be enough. Courts will instead look to whether the asserted public purpose is legitimate and whether the property rights being acquired will actually be used to accomplish the stated purpose.

For municipalities, the decision reinforces the importance of developing and maintaining comprehensive open-space, conservation, recreation, and similar planning documents. Nahant’s historical treatment of East Point played an important role in distinguishing the case from Pheasant Ridge. Municipal records demonstrating a longstanding interest in protecting a particular area can provide significant support for a later taking, even if eminent domain was not previously contemplated.

Ultimately, the decision reaffirms the broad scope of municipal eminent domain authority in Massachusetts while leaving the bad-faith doctrine intact for certain pretextual takings that lack the trappings of legitimacy found in this case. Going forward, the central inquiry will not simply be whether opposition to a particular development caused a municipality to act, but whether the municipality is actually taking the property for, and intends to devote the acquired property rights to, a legitimate public purpose.

A member of REBA’s Condominium Law Section, Stephen is an associate in the litigation and real estate departments of the Quincy-based firm of Moriarty, Bielan & Gamache LLC.   He handles a variety of real estate related matters, including title clearing, adverse possession, condominium disputes, commercial and residential leases, landlord-tenant disputes, conveyancing, and probate matters.  Stephen can be contacted at swiseman@mbgllc.com.

Managing Conflicts of Interest in Multi-Generational Estate Planning

 Michael J. Rossi

As families begin planning for the transition of assets, family businesses, and personal legacies, it is natural to approach the process as a shared family undertaking. Everyone

may have the same goal: preserving wealth, avoiding conflict, and ensuring a smooth transition to the next generation. From that perspective, it can seem reasonable to assume that one lawyer can simply represent “the whole family.”

In estate planning, however, that assumption can create important legal and ethical questions.

Planning for multiple generations simultaneously – whether involving spouses, parents and adult children, or family business owners and their successors – can create uncertainty about whose interests the lawyer represents. Family harmony may be the goal, but experienced estate planning attorneys must carefully respect legal and ethical boundaries to ensure that the resulting plan is both legally sound and defensible.

Who Is the Client?

This question of who a lawyer actually represents can be more complicated in estate planning than in many other areas of law. Estate planning lawyers frequently work with multiple people who have closely connected interests. A lawyer may meet with a husband and wife to prepare reciprocal estate plans, help parents think through a transfer of a family business, or work with several generations as a family develops a long-term wealth transfer strategy.

But close family relationships do not automatically mean that everyone is the lawyer's client.

The ethical framework governing these situations includes Model Rule of Professional Conduct 1.7, which addresses conflicts of interest involving current clients. Under Rule 1.7, a lawyer generally cannot represent a client when there is a “concurrent conflict of interest.” A conflict may arise when one client's interests are directly adverse to another's, or when there is a significant risk that the lawyer's representation of one client will be materially limited by responsibilities to another client, a former client, a third person, or the lawyer's own personal interests.

That second category is particularly important in estate planning. Family members may generally agree today while having interests that could diverge tomorrow.

When Can One Lawyer Represent Multiple Family Members?

Multiple representation is not automatically prohibited. In appropriate circumstances, a lawyer may represent more than one client if the lawyer reasonably believes that he or she can adequately represent the interests of each individual client and obtains each client's informed consent, confirmed in writing.

Clients should expect these conversations.

At the beginning of the representation, an attorney should clearly explain who the attorney represents and what joint representation means. For example, when representing both spouses, the lawyer should explain that the lawyer represents both individuals—not one spouse more than the other.

One important consequence is confidentiality between jointly represented clients. Generally, one client cannot tell the lawyer something and instruct the lawyer to keep it secret from the other jointly represented client. The lawyer may, of course, maintain confidentiality from third parties, but cannot ordinarily serve as a repository for secrets that materially affect the joint representation.

The lawyer also cannot take sides.

These expectations and limitations should be clearly addressed in the engagement letter and discussed before substantive planning begins.

What Happens When Family Interests Diverge?

Even with careful planning and full disclosure, conflicts can develop.

Perhaps spouses discover they have fundamentally different ideas about how assets should be distributed. A parent and child may disagree about the future of a family business. Or one family member may seek advice that directly conflicts with another person's interests.

When that happens, the attorney cannot simply choose a side based on which client is more likeable, more vocal, or more lucrative. Depending on the circumstances, the attorney may be required to withdraw from representing one or all of the affected clients.

While that may feel inconvenient, it is an important safeguard. A lawyer's ethical obligations are designed to ensure that each client receives independent and loyal representation.

The Myth of the “Family Lawyer”

These principles are especially important in intergenerational planning.

A “family” is not, by itself, a lawyer's client. An estate planning attorney represents specific individuals. For example, in preparing a will or trust, the lawyer generally represents the person making the estate plan – not the beneficiaries who may ultimately receive property.

That distinction becomes particularly important when an adult child brings an elderly parent to an attorney's office to prepare or revise an estate plan. The child may be helpful in arranging the appointment or providing background information, but the parent is the client.

The attorney must be diligent in determining and following the parent's wishes – not simply implementing the child's suggestions. Clients and family members should therefore expect that the attorney may ask an adult child or other relative to leave the room for part of the meeting. That private conversation can help the attorney confirm the client's intentions and ensure that decisions are being made freely.

An attorney generally cannot disclose information about a parent's estate plan or assets to adult children without the parent's express permission.

Ethical Boundaries Protect Families

These safeguards are not bureaucratic red tape. They are vital structural supports that help keep a multi-generational estate plan legally sound and defensible.

Families can make the process smoother by having open conversations early about who the lawyer represents, whether joint representation is appropriate, how confidentiality will work, and what will happen if interests diverge.

A thoughtful estate plan should account not only for assets and tax considerations, but also for family dynamics and the ethical framework governing the attorney-client relationship. By addressing those issues openly from the beginning, families can reduce misunderstandings and create a stronger foundation for the future.

 

Co-chair of REBA’s Ethics Section, Mike Rossi is a partner at the Boston-based law firm Conn Kavanaugh. Mike regularly defends lawyers and other professionals in malpractice actions and disciplinary proceedings. He also advises lawyers and law firms on risk management issues. Mike can be reached at mrossi@connkavanaugh.com

 

 

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Massachusetts Promotes Residential Development on Surplus State Property

           Abigail George

 

In August 2024, Governor Healey signed the Affordable Homes Act (“the Act”) into law. The Act is a historic piece of

legislation, authorizing $5.16 billion in spending over five years alongside nearly 50 policy initiatives to encourage housing production. This article touches on one.  The Act focuses on increased housing supply for low to moderate-income residents. Sections 121 and 122 address “Surplus Real Property for Residential Development,” addressing the development of state-owned land for housing.

 

Alongside the Act, the Healey-Driscoll administration has created a state Land for Homes Initiative. It focuses on increasing the Commonwealth’s housing supply by making surplus state land available for residential development under relaxed conditions. As part of this initiative, the state provides a database of upcoming, planned, and available land parcels suitable for development. Currently, the initiative has made available more than 725 acres for development, representing an anticipated 5,435 housing units. The database can be accessed at https://www.mass.gov/info-details/state-land-for-homes.

 

Last March, the Executive Office of Housing and Livable Communities (EOHLC) promulgated draft regulations for 760 CMR 77.00, specifying the conditions for development of this surplus land. These regulations were finalized and became effective on July 17, 2026.  In essence, 760 CMR 77.00 provides authority to the state Division of Capital Asset Management & Maintenance (DCAMM) and host municipalities to impose conditions on new developments while limiting excessive requirements that slow the pace of development.

 

Most significantly, municipalities are not allowed to impose conditions which will result in an effective density of fewer than four dwelling units per acre. The regulations are summarized below.

 

Surplus Real Property.  760 CMR 77.00 allows for as-of-right Residential Development of “Surplus Real Property” conveyed by the DCAMM Commissioner (Commissioner).  As defined in Section 121(a) of the AHA, Surplus Real Property includes property that is either (i) real property of the Commonwealth determined by the Commissioner to be surplus or (ii) real property of a public agency determined by the agency itself to be surplus.

 

Also as defined there, a public agency is “department, agency, board, commission, authority, or other instrumentality of the Commonwealth,” excluding “cities, town or counties or any boards, committees, commissions or other instrumentalities thereof.”

 

Effective Density.  Residential Developments on Surplus Property must achieve a minimum of four (4) housing units per acre. In calculating the effective density, all parties must include the entire Lot Area without exclusion. This includes open bodies of water and any public or private rights in the Lot Area.  Protected use accessory dwelling units (i.e., developed pursuant to M.G.L. c. 40A, §6 and 760 CMR 71.00) cannot count toward the number of units in a Lot Area. Additionally, effective density calculations cannot be rounded up to achieve the minimum.

 

Commissioner-Imposed Conditions. The DCAMM Commissioner may impose additional conditions on the development of Surplus Real Property for Housing Purposes at the time of Conveyance. These include:

 

·       Reuse Restrictions: Any use, restriction, or encumbrance as defined by the Commissioner (e.g. affordability requirements for housing developments, mandated clustering to preserve portions of parcel for recreation or conservation area, etc.).

 

·       Land Disposition Agreement: Agreement between the Commissioner and the Developer, through which parties may agree to additional conditions.

 

Municipality-Imposed “Reasonable Regulations.”  Municipalities may, but are not required, to impose “reasonable regulations” on Residential Developments of Surplus Real Property. “Reasonable regulations” are those which (i) pertain to the bulk and height of structures, lot area, setbacks, open space coverage, building coverage, and site plan review and (ii) meet the following conditions:

 

a.     Do not “directly or indirectly” prevent development within the Effective Density requirement or otherwise make such development “physically or financially infeasible;”

b.    Do not explicitly or effectively prohibit, or require, any particular Residential Development Type or bedroom count;

c.     Do not conflict with or supersede any applicable federal law;

d.    Do not impose more than the minimum requirements established by state or federal law; and

e.     Do not impose any additional local or regional Municipality law, unless required by the Conveyance.

 

As part of these reasonable regulations, municipalities may:

a.     Enforce the terms of a Development Agreement, so long as it does not conflict with the terms of the Conveyance;

b.    Impose regulations “necessary to ensure the Developer’s compliance with the terms of the Conveyance;”

c.     Allow additional non-residential uses on Surplus Real Property, such as mixed-use development, and provide incentives to encourage such use;

d.    Impose the minimum requirements established by any state or federal law; and

e.     Conduct Site Plan Review, limited to (i) aspects of a Residential Development that “relate directly to the public’s safety, health, and welfare” and (ii) additional aspects that are otherwise provided for a Reuse Restriction, an Agreement, or voluntarily agreed to by the Developer. Site Plan Review shall neither “unreasonably delay” nor impose “infeasible or impractical conditions” on Residential Developments.

 

Municipalities may not:

a.     Enforce general Municipal Regulations on Surplus Real Property where they are “inconsistent or in conflict with or exceed the scope of land-use controls described” in the AHA or 760 CMR 77.00;

b.    Require additional non-residential uses on Surplus Real Property; or

c.     Enforce a maximum density or dwelling unit cap, unless provided by the Conveyance.

 

Abigail George is a law clerk at McGregor Law Group and a recent graduate of the Boston University School of Law.

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Small Lots, Big (Ballot) Questions: The Movement to Legalize Starter Homes