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Ask Sam: Can I get evicted for renting my apartment on Airbnb?

City and state laws make renting out your place on Airbnb a dicey proposition.

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Question:

My landlord caught me renting my apartment on Airbnb. Can I get evicted? What can I do to keep my place?

Answer:

There are multiple laws on the books that make it difficult to legally rent your apartment through Airbnb in New York City, so the first thing you should do is familiarize yourself with them, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations.

New Yorkers who live in buildings with three or more residential units may not rent out their apartments for fewer than 30 days if they are not present, under the New York State multiple dwelling law; it’s also illegal to advertise a short-term rental in a multiple unit building.

Rent-stabilized tenants face additional restrictions, and for those who live in co-ops or condos, boards often establish their own set of rules for short-term rentals.

If you are illegally renting your apartment and someone—a neighbor, for instance—reports you, the Department of Buildings will send out an inspector and issue a fine.

“The fines are pretty hefty. Landlords really hate it for that reason,” Himmelstein says. “And the courts lately are siding with the landlords. There have been several recent decisions in which the tenants got evicted.”

In some of these cases, tenants were not given an opportunity to “cure”—that is, address the Airbnb complaint—before being evicted. However, there are several factors that could impact your chances of avoiding eviction.

“Were you in the apartment when you were Airbnb’ing it, or were you away? It’s much worse if you were not there, because then it’s considered an illegal sublet,” Himmelstein says.

The number of times you rented out your apartment, and the amount you charged people to stay there, could also impact a court’s decision on whether you should be evicted. Particularly for rent-stabilized tenants, there are strict laws against overcharging subtenants. If your monthly rent is $3,000, for instance, then the daily rent is $100. Legally speaking, you cannot charge a short-term renter more $100 per night to stay in your apartment alone, or $50 per night if you are present. 

However, note that all tenants—market-rate, stabilized, Mitchell-Lama, and NYCHA—could be subject to eviction for using Airbnb to rent out their apartments.

“If you overcharge—and do that multiple times—some courts will say that is not a curable breach of tenancy, but akin to a nuisance,” Himmelstein says. A tenant who is being a “nuisance” is at risk of eviction, even if they are rent-stabilized.

In this situation, your best shot at avoiding eviction is to give a full refund to whomever rented your place. It isn’t always easy, though, to track down Airbnb users.

“We tell people: If you refund all the money that you overcharged, stop renting out your apartment immediately, and never do it again, we might be able to save your tenancy,” Himmelstein says. “It really depends on your landlord, and whether they will be aggressive or content with you just stopping. And in deciding whether or not to issue an eviction order, the courts will generally take into account whether and how quickly you refunded the overcharges.”

Related

Ask Sam: What are the rules for evicting rent-stabilized tenants in NYC? (sponsored)

Ask Sam: Is it OK for me to rent out my rent-stabilized apartment on Airbnb? (sponsored)

Ask Sam: What can I do if my landlord is renting stabilized apartments on Airbnb? (sponsored)

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Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam at [email protected] or call (212) 349-3000.