Berlin, like many other municipalities, cities and counties, is trying to balance a scale that has property owners’ desire to earn income from short-term rentals on one side and traditionalists’ wish to preserve their long-held sense of community on the other.
The fulcrum on which this debate teeters is what property law experts call the “bundle of sticks” collection of property rights. They use that metaphor to show that each of these rights is a separate stick that may be altered or removed without disturbing the other sticks, or rights, contained in the bundle.
The problem, however, is that these property rights aren’t well defined in a legal sense, but in this country are based more on a publicly accepted, even embraced, concept that dates back to the frontier days.
This explains why the argument over how far property rights extend has been going on in this country for more than 200 years. The frontier-based notion that an owner can do whatever he or she wants to do with a dwelling (barring the separate bundle of land use restrictions) has run smack into a wall of compactly developed neighborhoods, whose residents have their own sticks they want to preserve — the right to the peaceable enjoyment of their properties.
Whose rights should prevail? That’s a question the courts haven’t been able to agree on, since most lawsuits for and against short-term rentals have turned not on the ephemeral matter of property rights, but on errors and omissions in the court filings and more narrowly defined constitutional questions.
There is no right answer that the Berlin mayor and council can simply pick up and employ. No matter what the mayor and council do, some people will be unhappy. That’s just the way it is, and the best town officials can do is to prepare for that eventuality.