Brookline condo owner has no right to rent out bedrooms on Airbnb no matter how much she may love her guests, judge rules

A federal judge on Friday dismissed a Brookline resident's efforts to make the town let her rent out rooms in her condo on Airbnb, saying the town zoning board and building department did nothing wrong in concluding she couldn't.

Much of US District Court Judge Denise Casper's ruling focuses on whether or not the town deprived Heleni Thayre of her due-process rights at a hearing at which the zoning board concluded that while the town zoning code did not allow her to rent out two of the three bedrooms in her Audubon Circle condo for short stays, even if the code did not specifically mention Airbnb. Casper concluded the town did not.

But Thayre also argued that the town's decision violated a constitutional prohibition against government interference with "intimate association," that while one might not normally associate the word "intimate" with a paid Airbnb stay in the way one might with, say, the relationship between a boyfriend and girlfriend, her bonds with her guests went far beyond that of an innkeeper and a paying customer.

To support her proposition, Thayre cites entries from her Airbnb’s guestbook, in which her guests provided handwritten notes attesting to the relationships they developed with Thayre during their stay.

Nice try, but nope, Casper wrote.

To start:

The protected right of association, however, “cannot be reinvented to suit a plaintiff’s fancy.” ... It cannot be stretched to form a “generic right to mix and mingle.”

Still, one has to consider whether an Airbnb guest might grow to so love, or at least deeply like, his or her host that their relationship would become one of the “kinds of personal bonds [that] have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs," Casper wrote, citing a case in which a Massachusetts corrections officer was fired for falling in love with a former inmate and having him move in with her.

To answer the question, Casper first had to figure out which specific right of intimate association Thayre meant in her self-written complaint. The judge concluded it was the right of unmarried people to cohabit.

And having figured that out, Casper turned to the foundational 1984 Supreme Court ruling on the issue in which the court concluded the brotherly, manly "intimate association" among male members of a national fraternal association would not be harmed if some chapters decided to admit women as full members.

And here's where Thayre's case falls apart, the judge continues.

While Thayre views a number of the relationships she has made with her guests as familial, the relationships that may or may not be forged during an Airbnb stay are not the type of relationships the right to intimate association is intended to protect.

In the corrections officer/former inmate case, the US Court of Appeals for the First Circuit, which includes Massachusetts, said the Supreme Court has never specifically named the "unmarried cohabitation of adults" to any of its "bright-line categories for fundamental rights."

Further, citing a case involving a Texas dance hall, she continued:

The Constitution does not recognize a "generalized right of 'social association that includes chance encounters.' "

And while Thayre may have developed quite close bonds with some of her guests:

By the very nature of the Airbnb service, however, many hosts do not develop any relationship with their guests, with some hosts choosing to stay elsewhere during their guest’s stay. As noted by Thayre herself, “most [guest-host relationships] are quite short-lived; they form and dissolve as guests arrive and depart,”

Those friendships she made along the way are not enough to overturn the Brookline zoning code, Casper concluded:

Even as alleged, Thayre fails to allege that the guest-host relationship has "played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs." ...

While Thayre argues that Airbnb “promotes its service as a way to ‘creat[e] durable, lasting relationships between host and guests that continue long after a reservation has ended,’” the extent to which this has proven true for Thayre does not make the Airbnb host-guest relationship one rooted in our culture and traditions, nor does it make the relationship integrally intimate. The First Circuit has specifically “decline[d] to expand upon” the Supreme Court’s bright-line categories for fundamental rights to include the cohabitation of unmarried adults. ... Accordingly, with no fundamental right or protected relationship at issue, the right to intimate association is inapplicable.