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— Multifamily Properties Quarterly — May 2016
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V
alued at over $20 billion,
Airbnb is the Uber of rentals.
Through the Airbnb web-
site, people can rent rooms,
apartments and homes. Over
a million rentals are listed on the
website for places all over the world.
Hundreds of Denver rentals, including
apartments, are listed on the website
and more are being added everyday.
A quick search of Airbnb reveals
that tenants at multiple apartment
communities are offering their apart-
ments for rent. If your tenants are
renting your units on Airbnb, this is a
clear breach of their lease.
Fortunately, dealing with Airbnb-
related lease violations is not difficult.
If you suspect that your tenants are
renting their apartment, the first step
is to conduct a search of the Airbnb
website.
Properties are not listed by name or
address, but enough information is
provided for you to easily determine
whether your rental is being sublet.
The general location (city or area) of
the rental is provided. The location
information allows you to quickly
determine if you have a problem.
If Airbnb units are offered in your
area, you’ll need to look at the specific
rentals offered.When you look at an
individual rental, multiple pictures of
a unit are displayed. Individual list-
ings also provide the first name of
the Airbnb host – your tenant who is
wrongfully subletting your unit. Thus,
if a host you’re renting to lists pictures
of your unit, your tenant is wrongfully
subleasing your unit on Airbnb.
Most leases provide that a tenant
may have guests for a certain number
of days before the guest is considered
to be an unauthorized occupant. A
guest is a person
who is invited to
visit your home
without paying
compensation. Airb-
nb renters are not
guests. Airbnb rent-
ers are unauthor-
ized occupants or
subtenants paying
rent to your tenant.
Thus, despite what
your tenant may
argue, Airbnb ten-
ants are not allowed
under a lease pro-
vision that allows
your tenant to have
guests for a limited
number of days.
Further, you don’t have to wait until
an Airbnb tenant has exceeded the
number of guest days in your lease
before you can take enforcement
action against your tenant.
If one of your tenants is wrongfully
offering your unit for rent, you can
take immediate action.When your
tenant offers your unit on Airbnb, the
tenant likely has breached several
lease covenants.
Specifically, the tenant has breached
most leases by running a business
out of the unit, allowing unauthorized
occupants and, certainly, by subletting
the unit.When a tenant breaches a
nonmonetary covenant, your remedy
is to serve the tenant with a Demand
for Compliance or Possession, i.e., stop
offering the unit for rent on Airbnb or
surrender possession of the unit.
Remember, in a compliance case,
you have to prove breach, that
demand was made and that the
breach continued after the demand
expired. Compliance-related evictions,
such as a typical unauthorized occu-
pant case, can be difficult to prove and
can turn into time-draining affairs in
court. Fortunately, an Airbnb violation
case is the easiest unauthorized occu-
pant compliance case to prove.
When you determine that your ten-
ant is wrongfully subletting, simply
take a screen shot or print all relevant
screens from the website. You now
have the information you need to
prove the initial breach. The second
element of proof is service of the
Demand for Compliance or Posses-
sion, which should be no problem.
The third element of proof is that
you must establish that the tenant
continued to breach – continued to
offer the unit on Airbnb after three
days, not including the day you served
the notice. Again, no problem. If the
tenant continues to list the unit on
the website, after the demand has
expired, just take or print additional
screen shots.
If your tenant complies with the
Demand for Compliance or Possession
within three days by removing the
listing fromAirbnb, you cannot move
forward with an eviction. However,
you should monitor Airbnb over the
next couple months to see if the ten-
ant relists the unit. If the tenant does
put the unit back on Airbnb, you could
serve a Notice to Quit for a Repeat
Violation.
Finally, you could specifically
address the issue in your lease – ten-
ant shall not list the unit on Airbnb.
However, in most cases, this is not
necessary because most leases have
strong prohibitions against unau-
thorized occupants and subletting.
If you do have a strong prohibition
against subletting and unauthorized
occupants, the potential benefit of a
specific Airbnb lease provision would
be to avoid the entire Airbnb situation
from the beginning.
Since tenants obviously do things in
violation of lease provisions anyway,
to maximize the effect of an Airbnb
lease provision, your leasing agent
should specifically point out the pro-
vision when the tenant executes the
lease.
s
Mark N.
Tschetter
Managing partner,
Tschetter Hamrick
Sulzer, PC, and
Colorado counsel
to the National
Apartment
Association,
Denver
Legal
The tenant has breached most leases
by running a business out of the unit,
allowing unauthorized occupants and,
certainly, by subletting the unit.
