"Marital Issues" Becoming Go-To Defense in Short-Term Rental Cases

Stacy Neir had been advertising her rowhome on Tennyson Street on Airbnb.
Stacy Neir had been advertising her rowhome on Tennyson Street on Airbnb.
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With the help of some testimony regarding tender marital issues, a felony case involving an Airbnb host allegedly lying on a short-term rental application just took a major hit.

On February 13, a Denver administrative hearing officer rejected the city's claim that Stacy Neir intentionally misrepresented the address of her primary residence on her short-term rental application. "I do not find that Ms. Neir’s statements were false in the sense that she made them willfully or with an intent to deceive," Suzanne Fasing, the hearing officer, wrote in her recommended decision.

Denver's Department of Excise and Licenses, which regulates short-term rentals and has the final say regarding Fasing's recommendations, had charged that Neir's actual primary residence isn't the Tennyson Street rowhouse in the Berkeley neighborhood that she'd claimed, but actually a home on Beekman Place in Stapleton.

Although this administrative process is separate from the Denver district attorney's criminal case against Neir, the fact that a city hearing officer said she didn't believe that Neir was trying to be deceptive could prove useful to Neir's legal defense. The felony charge of attempting to influence a public servant has to include an element of deceit, and the hearing officer concluded that didn't exist in this case.

Additionally, the evidence threshold for finding someone in violation of Denver city code in an administrative hearing is significantly lower than it is to prove someone guilty in criminal court, so prosecutors will have a higher burden of proof if they want to convict Neir.

Fasing did end up recommending that the city revoke Stacy Neir's short-term rental license, since the officer determined that Neir wasn't actually using the Tennyson Street home that she'd been renting out as her primary residence, a legal requirement. In fact, Neir had been in violation of the city's primary-residence requirement for years, Fasing concluded.

City officials had pushed for this primary-residence rule — which dictates that property owners can only use their primary residence for short-term-rentals, not rental units or other properties they own — in order to protect neighbors from disruptive guests, as well as to ensure that real estate speculators don't buy up properties simply to use them as short-term rentals, which would reduce Denver's housing stock. The primary-residence affidavits are one way that the city enforces that requirement.

While Fasing concluded that Neir wasn't using the Tennyson Street home as her primary residence, even though she'd stated that on the affidavit she signed in April 2019, she also determined that Neir wasn't being intentionally misleading.

"[Neir] stated that Tennyson Street was her primary residence because she was separated from her husband at that time and was living at Tennyson Street. She believed that Tennyson Street was her usual place of return for housing at that time because she was sleeping and eating there, and it was the place to which she returned after taking trips. The Beekman family home was not her usual place of return in April 2019. She never intended to deceive the City of Denver about her primary residence," Fasing wrote. The Neirs were separated from February to August 2019, when they reconciled during a family vacation, according to testimony during the  hearing.

City officials allege that Neir's husband, Alex, who had been operating a short-term rental property a few blocks north of Empower Field at Mile High until he was charged criminally, had also been using the Stapleton home as his primary residence. Alex Neir's hearing with the city has not yet been held.

Testimony about marital issues during another city hearing helped local immigration attorney Aaron Elinoff, who had been charged with lying on a short-term rental affidavit. In a summary issued in November 2019, hearing officer Macon Cowles highlighted the marital issues that Elinoff was having with his wife as the reason that he could plausibly have been using his short-term rental property as his primary residence, despite the fact that his wife was living elsewhere.

Not long after Cowles delivered his determination that Elinoff hadn't been deceptive on his short-term rental application, the Denver DA's office asked for the felony case against him to be dismissed.

The Neirs both have trials scheduled for Denver District Court in April. Spencer Chase, the other person who's been charged with lying on his short-term rental application, has a motions hearing scheduled for mid-March.

Excise and Licenses, Stacy Neir's lawyer and the Denver District Attorney's office all declined to comment on the hearing officer's decision in her case.

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