On AirBnB and Subletting

Thinking of subletting your apartment or room through AirBnB or a similar service?  Think again!  If you are a rent regulated tenant—subject to Rent Stabilization, Rent Control, the Loft Law, or in an HDFC, Mitchell Llama, or other subsidized apartment—you could lose your apartment if you rent it out this way.

If you sublet your apartment, you cannot charge more than the landlord charges you.  If you stay in the apartment, you cannot charge more than the pro rata share of the rent.  You have a right to a roommate, but that law (Real Property Law § 235-f) is a little complicated.   It is also affected by the sublease rules (Real Property Law § 226-b) and your lease.

"Profiteering" May Get You Evicted

There have been a number of recent cases evicting tenants for renting out their apartment at a profit.  While the law is far from settled on this issue, courts are tending to find that any type of "profiteering" is incurable, which means that even if you stop doing it as soon as you are notified by the landlord, you can still be evicted.

You cannot disguise additional charges, either.  We have seen tenants evicted for charging a "furniture rental" or "storage fee."  AirBnB renters regularly charge a "cleaning fee;" this is also illegal in a rent-regulated apartment.

"Transient" Subletting May Get You Evicted

The other problem with these services is the transient nature of the rentals.  A stay of less than 30 days is usually considered transient.  

Whether or not transient rentals are lawful depends on how your apartment is classified.  Nearly all apartments in New York City are Class A multiple dwellings, in which transient rentals are not allowed.   A Class B multiple dwelling, such as a rooming house or residential hotel, allows transient rentals.  Using a Class A apartment for Class B purposes, however, is illegal.

Owners have been caught and fined for this too—it's not just tenants.  If you know of a landlord that is doing short-term rentals ("illegal hoteling"), you can contact the Mayor's task force, or call 311 and report it.

Don't Count on AirBnB to Warn or Protect You

Needless to say, the services brokering illegal transient rentals are not informing their customers that the rentals are against the law—why would they?  The services makes money off the rentals, whether or not the listing tenant gets evicted.  Even as the City reports that most AirBnB listings in New York City are illegal, there are glowing advertisements for these services all over the City, which do not warn potential customers of the dangers of using the service.  To find a warning, you must specifically search through their website for the "government & law enforcement policies" page.

A listing tenant may even face cancellation charges, if they try to remedy the situation to save their housing.  Imagine this scenario: You have been listing on AirBnB.  You receive a Notice of Termination from you landlord.  You immediately cancel future listings, and close your account.  What happens?  In all likelihood, you still get evicted, because AirBnB is "incurable," and AirBnB hits you with a cancellation fee.

Recently, we have also come across a case where AirBnB sent records of a listing tenant directly to their landlord, without a Court Order.  The landlord is now using those records in Court to try to evict the tenant.

If you have stories to share with us about AirBnB legal issues, need advice as to whether or not you can safely host through the service, or have received an eviction notice based on your subletting practices, feel free to contact us.



Posted on January 7, 2016 .