The legal issues surrounding Airbnb in New York City have scared off some hosts from listing their homes on the popular room rental website. Metro spoke with land use and government relations attorney Christian Hylton about how to avoid legal trouble if you would like to host renters at your home. (Hylton is not affiliated with Airbnb and the following is not meant to be legal advice on behalf of his firm, Abrams Fensterman.)
Make sure a permanent tenant is present: Airbnb helped Nigel Warren appeal a ruling that renting out his room through Airbnb was illegal on the basis that his roommate was present during the stay. David Hantman, head of global public policy at Airbnb, wrote on the company’s blog, “We and Nigel argued – and the appeal board now agrees – that under New York law as long as a permanent occupant is present during a stay, the stay does not violate New York’s short term rental laws.” Hylton said, “Make sure you’re present in that space for the rental not to be considered ‘hotel use.’”
Maintaining a presence is still a gray area, but for hosts who stay at a significant other’s home, for example, Warren said you might want to cover your bases. “It’s hard to definitively say how the city would choose to prove this,” he said. “The judge would want to determine if you are using the apartment in the way you normally use it when you’re living there: Are you sleeping there, are you making breakfast, are you taking phone calls there, are you picking up your mail?”
Get a notarized sublease: For stays over 30 days, hosts can rent out their entire homes to guests as long as the original lease allows it. Check your lease and see if you are permitted to have people sublet your home. If so, you can get a notarized sublease for a rental of over 30 days, even if you are charging more than what you pay for your own rent. Hylton said co-op and condominium owners should double-check to see if their boards have specific rules against subletting. You do not need a permanent tenant at home if the guest is subletting for over 30 days.
Don’t upset your neighbors: Authorities are not looking to spend the bulk of their time hunting down casual Airbnb hosts – they will only come after you if they have been notified of illegal activity. Whistleblowers can include angry neighbors and landlords who are unhappy about extra foot traffic or strangers in the building.