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Gracious host or risking eviction? A win for Airbnb hosts

VCAT decision clarifies rights and responsibilities of Airbnb guests and hosts

A big win for Airbnb hosts in Victoria, as VCAT finds a landlord could not evict tenants who listed their apartment on the popular accommodation website.

Airbnb is to the residential tenancy market, what Uber is to the taxi industry and like the ride share platform, continues to cause controversy as it increases in popularity. Airbnb, for those not familiar, is an accommodation website which facilitates ‘hosts’ listing and ‘guests’ searching properties for short-time stays. Airbnb hosts can list entire homes/apartments as well as private or shared rooms, and in Melbourne alone has in excess of 8000 property listings at an average of $137 per night. The website has created conflict between landlords and tenants, as tenants are tapping into the lucrative market.

The website has recently come into focus as the issue as to whether Airbnb guests are occupying a residential property as tenants, or pursuant to a license, has been considered in Victoria in the VCAT decision Swan v Uecker (Residential Tenancies) [2016] VCAT 483.

In this instance, a couple who are residential tenants at an apartment in St Kilda leased their apartment on Airbnb without seeking their landlord’s consent. Airbnb guests stayed at the property in a spare room from time to time, often when the tenants were on holidays.

The landlord, who became aware the tenants were hosting Airbnb guests after being notified by neighbours, subsequently issued a notice to evict the tenants on the basis that the tenant had wrongfully sub-let the property. The landlord submitted that use of the rented premises by the tenant as an Airbnb property, amounted to subletting without the landlord’s consent which permitted the landlords to evict the tenants from the premises under the terms of their lease.

The tenants conceded they were running an Airbnb account with the property and they had not sought the landlord’s consent, but argued that they were licensing part of the premises to the guests, not sub-letting. The tenants further submitted the following:

  1. the rented premises continued to be their principal place of residence since the commencement of the tenancy;
  2. they acted as hosts and guests were not allowed to check-in before a certain time and were required to leave by a certain time on an exist date;
  3. under the terms of the Airbnb agreement, the tenants maintained their right to revoke the tenant’s license and eject the guests;
  4. at no stage had any of the guests considered the rented premises to be their principal place of residence; and
  5. the longest an Airbnb guest had stayed at the premises was 5 days.

The tribunal found in favour of the tenants and determined that the nature of the legal relationship between the Airbnb guests was not a tenancy, rather a licence to occupy.

In light of this decision, we advise our landlord clients of residential premises against serving a notice to vacate on grounds a tenant may be “assigning or subletting” a property, by using it as an Airbnb. Instead, we recommend that landlords consider including terms in their residential leases expressly precluding their tenants from using the premises as Airbnb stays.

For tenants, this decision does not present a green light for Airbnb hosting, as there is still a risk that using the accommodation website will risk breaching your rental agreement, causing friction with your landlord. We highly recommend tenants seek written consent from their landlords before listing their premises with Airbnb.

The VCAT decision is currently on appeal to the Supreme Court of Victoria.

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