A02928 Summary:

BILL NOA02928A
 
SAME ASNo Same As
 
SPONSORFahy
 
COSPNSR
 
MLTSPNSR
 
Add Art 2-A 20 - 24-a, Mult Res L; amd 1101, 1105, 1131 & 1132, add Art 29 part 1 Subpart A 1200, Tax L
 
Establishes regulations for the short term rental of private dwellings; defines terms; requires registration and safety precautions.
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A02928 Actions:

BILL NOA02928A
 
01/28/2019referred to housing
04/24/2019amend (t) and recommit to housing
04/24/2019print number 2928a
01/08/2020referred to housing
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A02928 Committee Votes:

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A02928 Floor Votes:

There are no votes for this bill in this legislative session.
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A02928 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         2928--A
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 28, 2019
                                       ___________
 
        Introduced  by  M. of A. FAHY -- read once and referred to the Committee
          on Housing -- committee discharged, bill amended, ordered reprinted as
          amended and recommitted to said committee
 
        AN ACT to amend the multiple residence law and the tax law, in  relation
          to short-term residential rental of private dwellings in certain muni-
          cipalities

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The multiple residence law is amended by adding a new arti-
     2  cle 2-A to read as follows:
     3                                 ARTICLE 2-A
     4                     SHORT-TERM RESIDENTIAL RENTAL UNITS
     5  Section 20. Definitions.
     6          21. Short-term residential rental units; regulation.
     7          22. Registration.
     8          23. Exception.
     9          24. Tax exemption in certain circumstances.
    10          24-a. Penalties.
    11    § 20. Definitions. For the purposes of  this  article,  the  following
    12  terms shall have the following meanings:
    13    1. "Short-term residential rental unit" means an entire dwelling unit,
    14  or  a room, group of rooms, other living or sleeping space, or any other
    15  space within a dwelling, made available for rent by guests for less than
    16  thirty consecutive days, where the unit is offered for tourist or  tran-
    17  sient use by the host of the residential unit.
    18    2.  "Short-term  rental host" means a person in valid legal possession
    19  of a short-term rental unit who rents such unit to guests.
    20    3. "Hosting platform" means a person or entity  who,  pursuant  to  an
    21  agreement with a short-term rental host:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02313-02-9

        A. 2928--A                          2
 
     1    (a)  provides  a  platform for compensation through which unaffiliated
     2  third party short-term rental hosts can offer to rent short-term  rental
     3  units; and
     4    (b) collects a fee in connection with either:
     5    (i)  providing  the forum in which, or by means of which, the offer of
     6  occupancy of a short-term rental unit is accepted; or
     7    (ii) providing the forum in which a short-term rental host can list or
     8  advertise space in a short-term rental unit.
     9    § 21. Short-term residential rental units; regulation. 1. A short-term
    10  rental host may operate a dwelling  unit  as  a  short-term  residential
    11  rental unit provided such dwelling unit:
    12    (a)  is registered in accordance with section twenty-two of this arti-
    13  cle;
    14    (b) is not used to provide single room occupancy as defined by  subdi-
    15  vision forty-four of section four of this chapter;
    16    (c) includes a conspicuously posted evacuation diagram identifying all
    17  means of egress from the unit and the building in which it is located;
    18    (d)  includes  a  conspicuously posted list of emergency phone numbers
    19  for police, fire, and poison control;
    20    (e) has a working fire-extinguisher; and
    21    (f) is insured by an insurer licensed to write insurance in this state
    22  or procured by a duly licensed excess line broker  pursuant  to  section
    23  two  thousand one hundred eighteen of the insurance law for at least the
    24  value of the dwelling, plus a minimum of three hundred thousand  dollars
    25  coverage for third party claims of property damage or bodily injury that
    26  arise  out of the operation of a short-term rental unit. Notwithstanding
    27  any other provision of law, no insurer shall be required to provide such
    28  coverage.
    29    2. Occupancies of a short-term rental unit shall be subject  to  taxes
    30  and  fees  pursuant  to articles twenty-eight and twenty-nine of the tax
    31  law and applicable local laws.
    32    3. Short-term rental hosts shall maintain  records  related  to  guest
    33  stays  for  two years following the end of the calendar year in which an
    34  individual rental stay occurred, including the date of each stay and the
    35  identity and number of guests, the cost for each stay,  including  rele-
    36  vant tax, and records related to their registration as short-term rental
    37  hosts  with  the  department of state. As a requirement for registration
    38  under section twenty-two of this  article,  hosts  shall  provide  these
    39  records  to  the  department of state on an annual basis. The department
    40  may share this report with county, city, town, or village governments.
    41    4. Notwithstanding the provisions of any other law  or  administrative
    42  action  to  the contrary, hosting platforms shall develop and maintain a
    43  report related to short-term rental unit guest stays  that  the  hosting
    44  platform has facilitated in the state for two years following the end of
    45  the  calendar  year  in  which  an  individual rental stay occurred. The
    46  report shall include the dates of each stay and the identity and  number
    47  of  guests, the cost for each stay, including relevant tax, the physical
    48  address, including any unit designation, of each short-term rental  unit
    49  booked,  the  full legal name of each short-term rental unit's host, and
    50  each short-term rental unit's  registration  number.  Hosting  platforms
    51  shall  make  this  report  and,  where  applicable all relevant records,
    52  available to the department of state consistent  in  response  to  valid
    53  legal  process.  The department may share this report with county, city,
    54  town, or village governments when lawfully requested.
    55    5. Short-term rental hosts may only list  one  unit  on  a  short-term
    56  rental platform.

        A. 2928--A                          3
 
     1    6.  It  shall be unlawful for a hosting platform to facilitate booking
     2  transactions for short-term rental units located in this  state  if  the
     3  short-term  rental  unit  and its owner or tenant have not been issued a
     4  current, valid registration by the department of state  and  the  short-
     5  term  rental  unit is not otherwise lawful at the time it is rented by a
     6  guest.
     7    7. The provisions of this article shall apply to municipalities with a
     8  population less than one million.
     9    § 22. Registration. 1. Short-term rental hosts shall  be  required  to
    10  register  a  short-term  residential  unit with the department of state.
    11  Only hosts who are natural persons shall qualify for registration.
    12    2. Registration shall be valid for two years,  after  which  time  the
    13  short-term  rental  host  may  renew his or her registration in a manner
    14  prescribed by the department of  state.  The  department  of  state  may
    15  revoke the registration of a short-term rental host upon a determination
    16  that the short-term rental host has violated any provision of this arti-
    17  cle  at  least three times in two calendar years, and may determine that
    18  the short-term rental host shall be ineligible for  registration  for  a
    19  period  of  up  to  twelve  months  from the date the third violation is
    20  determined to have occurred.   Listing or  using  a  dwelling  unit,  or
    21  portion  thereof,  as  a  short-term  residential  rental  unit  without
    22  current, valid registration shall be unlawful  and  shall  make  natural
    23  persons  ineligible  for registration for a period of twelve months from
    24  the date the violation is determined to have occurred.
    25    3. The department of state shall set a fee for short-term  residential
    26  rental unit registration.
    27    4.  A short-term rental host shall include their current, valid regis-
    28  tration number on all offerings, listings or advertisements  for  short-
    29  term rental guest stays.
    30    5.  A  tenant,  or  other  person that does not own the unit but is in
    31  valid legal possession of a short-term rental unit,  shall  not  qualify
    32  for  registration if they are not the permanent occupant of the dwelling
    33  unit in question and have not been granted permission in writing by  the
    34  owner  for  its  short-term  rental, to be verified by the department of
    35  state.
    36    § 23. Exception. Notwithstanding the provisions of any  other  law  to
    37  the contrary, this article shall not apply to:
    38    1.  a  private  dwelling or apartment whose permanent resident, family
    39  member, or owner remains in the private dwelling or  apartment  for  the
    40  duration  of  any  rental  period,  provided  however, that such private
    41  dwelling or apartment is in compliance with the standards set  forth  in
    42  the law for bed and breakfast establishments; or
    43    2. incidental and occasional occupancy of such dwelling unit for fewer
    44  than thirty consecutive days by other natural persons when the permanent
    45  occupants  are temporarily absent for personal reasons, such as vacation
    46  or medical treatment, provided that there is  no  monetary  compensation
    47  paid to the permanent occupants for such occupancy; or
    48    §  24.  Tax  exemption  in  certain  circumstances. No taxes collected
    49  pursuant to article twenty-eight or twenty-nine of the tax law shall  be
    50  imposed  upon the short-term rental of a unit if the host transfers such
    51  short-term rental not more  than  fourteen  days  in  a  calendar  year,
    52  provided, that the host has first: (i) registered with the department of
    53  state  in  accordance  with section twenty-two of this article; and (ii)
    54  filed a declaration with the secretary of state, signed by the operator,
    55  setting forth the intention to transfer the short-term  rental  for  not
    56  more  than  fourteen  days  in  a  calendar year. Such a declaration, if

        A. 2928--A                          4
 
     1  applicable, shall be required annually in a  manner  determined  by  the
     2  commissioner  of  taxation and finance. If the operator rents the short-
     3  term rental for fifteen days or more in the same calendar year, or fails
     4  to register and file a declaration as required by this section, then the
     5  operator  shall  be  liable  for the payment of required taxes collected
     6  pursuant to article twenty-eight or twenty-nine of the tax law,  includ-
     7  ing  payment  of  required taxes and fees on the first fourteen days the
     8  short-term rental was transferred in the calendar year.
     9    § 24-a. Penalties. Notwithstanding the provisions of any other law  to
    10  the  contrary, anyone found in violation of the provisions of this arti-
    11  cle shall be subject to a civil penalty of not less  than  one  thousand
    12  dollars  nor  more than twenty-five thousand dollars for each violation.
    13  In addition to such civil penalty, a separate additional penalty may  be
    14  imposed  of  not  more  than  one thousand dollars for each day that the
    15  violation is not corrected.
    16    § 2. Subdivision (c) of section 1101 of the tax law, as added by chap-
    17  ter 93 of the laws of 1965, paragraphs 2, 3,  4  and  6  as  amended  by
    18  section 2 and paragraph 8 as added by section 3 of part AA of chapter 57
    19  of  the  laws  of 2010, and paragraph 5 as amended by chapter 575 of the
    20  laws of 1965, is amended to read as follows:
    21    (c) When used in this article for the  purposes  of  the  tax  imposed
    22  under  subdivision  (e)  of section eleven hundred five of this article,
    23  and subdivision (a) of section eleven hundred four of this article,  the
    24  following terms shall mean:
    25    (1)  Hotel.  A  building  or portion of it which is regularly used and
    26  kept open as such for the lodging of guests. The term  "hotel"  includes
    27  an  apartment  hotel,  a  motel,  boarding house or club, whether or not
    28  meals are served, and short-term rental units.
    29    (2) Occupancy. The use or possession, or  the  right  to  the  use  or
    30  possession,  of  any  room  in a hotel. "Right to the use or possession"
    31  includes the rights of a room remarketer as described in paragraph eight
    32  of this subdivision.
    33    (3) Occupant. A person who, for a consideration, uses,  possesses,  or
    34  has  the  right  to use or possess, any room in a hotel under any lease,
    35  concession, permit, right of access, license to use or other  agreement,
    36  or  otherwise.  "Right  to use or possess" includes the rights of a room
    37  remarketer as described in paragraph eight of this subdivision.
    38    (4) Operator. Any person operating a hotel. Such term shall include  a
    39  room  remarketer  and  such room remarketer shall be deemed to operate a
    40  hotel, or portion thereof, with respect to which  such  person  has  the
    41  rights of a room remarketer.
    42    (5)  Permanent  resident. Any occupant of any room or rooms in a hotel
    43  for at least ninety consecutive days shall  be  considered  a  permanent
    44  resident with regard to the period of such occupancy.
    45    (6)  Rent.  The  consideration  received  for occupancy, including any
    46  service or other charge or amount required to be paid as a condition for
    47  occupancy, valued in money, whether received in money or  otherwise  and
    48  whether  received  by  the  operator  [or],  a  hosting platform, a room
    49  remarketer or another person on behalf of [either] any of them.
    50    (7) Room. Any room or rooms of any kind in any part or  portion  of  a
    51  hotel,  which  is  available for or let out for any purpose other than a
    52  place of assembly.
    53    (8) Room remarketer. A person who reserves, arranges for, conveys,  or
    54  furnishes  occupancy, whether directly or indirectly, to an occupant for
    55  rent in an amount determined by the room remarketer, directly  or  indi-
    56  rectly,  whether pursuant to a written or other agreement. Such person's

        A. 2928--A                          5
 
     1  ability or authority to reserve, arrange for, convey, or  furnish  occu-
     2  pancy,  directly or indirectly, and to determine rent therefor, shall be
     3  the "rights of a room remarketer". A room remarketer is not a  permanent
     4  resident  with respect to a room for which such person has the rights of
     5  a room remarketer.  This term does not include a hosting platform.
     6    (9) Short-term rental unit. A room, group of rooms, or other living or
     7  sleeping space, or any other space let to occupants, including  but  not
     8  limited  to  private  dwellings,  residences, or buildings used as resi-
     9  dences.
    10    (10) Hosting platform. (i) A person or  entity  who,  pursuant  to  an
    11  agreement with an operator of a hotel:
    12    (A) provides a platform for compensation through which an unaffiliated
    13  third party hotel operator offers to rent space in a hotel; and
    14    (B) collects a fee in connection with either:
    15    (1)  providing  the forum in which, or by means of which, the offer of
    16  occupancy of a hotel room is accepted; or
    17    (2) providing the forum in which a hotel operator can list  or  adver-
    18  tise space in a hotel for occupancy.
    19    (ii)  A  hosting  platform  shall  not  include a person or entity who
    20  facilitates bookings of hotel  rooms  solely  on  behalf  of  affiliated
    21  persons  or  entities,  including  franchisees, operating under a shared
    22  hotel brand.
    23    § 3. Subdivision (e) of section 1105 of the  tax  law  is  amended  by
    24  adding a new paragraph 3 to read as follows:
    25    (3) The rent for every occupancy of a room or rooms in a hotel offered
    26  for  rent  through  a  hosting  platform, as defined in paragraph ten of
    27  subdivision (c) of section eleven hundred one of this  article,  regard-
    28  less  of  whether it is furnished, limited to a single family occupancy,
    29  or provides housekeeping, food, or other common hotel services,  includ-
    30  ing, but not limited to, entertainment or planned activities.
    31    §  4.  Subdivision  1  of  section  1131 of the tax law, as amended by
    32  section 1 of part X of chapter 59 of the laws of  2018,  is  amended  to
    33  read as follows:
    34    (1)  "Persons  required to collect tax" or "person required to collect
    35  any tax imposed by this article" shall include: every vendor of tangible
    36  personal property or services; every recipient of amusement charges; and
    37  every operator of a hotel; and hosting platforms unless relieved of such
    38  obligation pursuant to paragraph three of  subdivision  (l)  of  section
    39  eleven  hundred  thirty-two  of this part. Said terms shall also include
    40  any officer, director or employee of a corporation  or  of  a  dissolved
    41  corporation, any employee of a partnership, any employee or manager of a
    42  limited  liability company, or any employee of an individual proprietor-
    43  ship who as such officer, director, employee or manager is under a  duty
    44  to  act  for such corporation, partnership, limited liability company or
    45  individual proprietorship in complying  with  any  requirement  of  this
    46  article,  or  has  so  acted; and any member of a partnership or limited
    47  liability company. Provided, however, that any person who  is  a  vendor
    48  solely  by  reason of clause (D) or (E) of subparagraph (i) of paragraph
    49  (8) of subdivision (b) of section eleven hundred  one  of  this  article
    50  shall not be a "person required to collect any tax imposed by this arti-
    51  cle"  until  twenty days after the date by which such person is required
    52  to file a certificate of registration pursuant to section eleven hundred
    53  thirty-four of this part.
    54    § 5. Section 1132 of the tax law is amended by adding a  new  subdivi-
    55  sion (l) to read as follows:

        A. 2928--A                          6
 
     1    (l)(1)  A  hosting  platform shall be required to (i) collect from the
     2  occupants the applicable  taxes  arising  from  such  occupancies;  (ii)
     3  comply  with  all the provisions of this article and article twenty-nine
     4  of this chapter and any  regulations  adopted  pursuant  thereto;  (iii)
     5  register to collect tax under section eleven hundred thirty-four of this
     6  part; and (iv) retain records and information as required by the commis-
     7  sioner  and  cooperate  with  the  commissioner  to  ensure  the  proper
     8  collection and remittance of tax imposed, collected, or required  to  be
     9  collected under this article and article twenty-nine of this chapter.
    10    (2)  In  carrying  out  the  obligations imposed under this section, a
    11  hosting platform shall have all the duties, benefits,  and  entitlements
    12  of a person required to collect tax under this article and article twen-
    13  ty-nine  of  this chapter with respect to the occupancies giving rise to
    14  the tax obligation, including the right to accept a certificate or other
    15  documentation from an occupant substantiating an exemption or  exclusion
    16  from  tax,  as  if  such hosting platform were the operator of the hotel
    17  with respect to such occupancy,  including  the  right  to  receive  the
    18  refund  authorized  by  subdivision  (e)  of this section and the credit
    19  allowed by subdivision (f) of section  eleven  hundred  thirty-seven  of
    20  this part.
    21    (3) An operator of a hotel is not a person required to collect tax for
    22  purposes  of this part with respect to taxes imposed upon occupancies of
    23  hotels if:
    24    (i) the operator of the hotel can show that the occupancy was  facili-
    25  tated by a hosting platform who is registered to collect tax pursuant to
    26  section eleven hundred thirty-four of this part; and
    27    (ii)  the  operator  of the hotel accepted from the hosting platform a
    28  properly completed certificate of collection in a form prescribed by the
    29  commissioner certifying that the hosting platform has agreed  to  assume
    30  the  tax  collection  and filing responsibilities of the operator of the
    31  hotel; and
    32    (iii) any failure of the hosting platform to collect the proper amount
    33  of tax with respect to such occupancy was not the result of the operator
    34  of the hotel providing incorrect information to  the  hosting  platform,
    35  whether intentional or unintentional.
    36    This  provision  shall  be  administered  in  a manner consistent with
    37  subparagraph (i) of paragraph one of subdivision (c) of this section  as
    38  if  a  certificate  of collection were a resale or exemption certificate
    39  for  purposes  of  such  subparagraph,  including  with  regard  to  the
    40  completeness  of  such  certificate  of collection and the timing of its
    41  acceptance by the operator of the hotel;  provided  however,  that  with
    42  regard  to  any  occupancies  sold  by an operator of the hotel that are
    43  facilitated by a hosting platform who is affiliated with such  operator,
    44  the  operator shall be deemed liable as a person under a duty to act for
    45  such hosting platform for purposes of subdivision one of section  eleven
    46  hundred thirty-one of this part.
    47    (4)  The  commissioner  may, in his or her discretion develop standard
    48  language, or approve language developed by a hosting platform, in  which
    49  the  hosting  platform  obligates itself to collect the tax on behalf of
    50  all the operators of hotels.
    51    (5) In the event an operator of a hotel is a room remarketer, and  all
    52  other  provisions  of this subdivision are met such that a hosting plat-
    53  form is obligated to collect tax,  and  does  in  fact  collect  tax  as
    54  evidenced  by  the  books and records of such hosting platform, then the
    55  provisions of subdivision (e) of section eleven hundred nineteen of this
    56  article shall be applicable.

        A. 2928--A                          7
 
     1    § 6. Subpart A of part 1 of article 29 of the tax law  is  amended  by
     2  adding a new section 1200 to read as follows:
     3    §  1200.  Definition.  For  the purposes of this article "hotel" shall
     4  mean a building or portion of such building which is regularly used  and
     5  kept open as such for the lodging of guests, including: (a) an apartment
     6  hotel,  (b)  a motel, (c) a boarding house or club, whether or not meals
     7  are served, and (d) short-term residential rental units  as  defined  in
     8  subdivision one of section twenty of the multiple residence law.
     9    §  7.  Notwithstanding  any other provisions of law to the contrary, a
    10  county, city, town, or village government may enact a local law  prohib-
    11  iting  or  further  limiting  the  listing  or use of dwelling units, or
    12  portions thereof, as short-term residential rental units.
    13    § 8. If any provision of this act, or any application of any provision
    14  of this act, is held to be invalid, that shall not affect  the  validity
    15  or  effectiveness  of  any  other provision of this act, or of any other
    16  application of any provision of this act,  which  can  be  given  effect
    17  without  that  provision or application; and to that end, the provisions
    18  and applications of this act are severable.
    19    § 9. This act shall take effect on the one hundred twentieth day after
    20  it shall have become a law.
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