SO YOU WANT TO RENT YOUR HOUSE ON AIRBNB? LAW IS INVOLVED

Launched in the midst of the 2008 “Great Recession,” Airbnb is an online community marketplace allowing people to visit their website and advertise a room or even your whole house for short term rental. All of it can be done over the internet without registering with the state or local governments, directly paying or collecting taxes, or meeting insurance requirements. As we refer to below, they do take certain minimum steps in these areas but do not assume that all requirements or liabilities are met.

Airbnb makes its money by charging guests and hosts a percentage of each rental transaction, and handles the collection and disbursements of rent to the host along with any applicable “bed taxes.” It even provides $1,000,000 in liability insurance should, for example, a guest slip and fall while enjoying your hospitality. There are other permits, taxes and liabilities that are not necessarily met by these minimums. However, the purpose of this article is to talk about the guest and whether the guest can be promptly removed from the premises.

While the Airbnb platform provides the promise of quick profit by marketing private residential property as if it were a hotel, the lack of licensure and regulations explicitly applicable to the arrangement leaves a property owner without a quick remedy in the event the tenant refuses to vacate and/or continue to pay as agreed. This issue first garnered national attention when two Russian brothers rented a Palm Springs, California condominium for 44 days and refused to leave after only paying for the first 30. In that case, the renter exploited California landlord/tenant law which requires formal evictions for tenancies exceeding 30 days. While Airbnb covered the unpaid portion of the reservation, Airbnb does not appear to formally offer any assurance that the guest will vacate or even provide indemnity for the cost of removal.

Here in Florida, the operator of any “public lodging establishment,” i.e. hotels and motels, is entitled to near immediate aid from the sheriff to remove unwanted guests simply by notice provided under Florida Statute 509.141. But if an AirBNB host is not licensed as a hotel or motel (which would be highly unlikely for a casual user) the sheriff will most likely direct them to the county court eviction intake office to pursue the removal as a civil matter. This is because residential evictions are covered by the Florida Residential Landlord and Tenant Act (the “Act”), Sec. 83.40, Fla. Stat. et seq. And, the chapter relied upon by hotels explicitly states that it “may not be used to circumvent the procedural requirements of the Florida Residential Landlord and Tenant Act.” Sec. 509.034, Fla. Stat.

Unfortunately, unlike California and certain other states, the Act does not offer any exclusion from its provisions for tenancies of exceedingly short durations (i.e. less than 30 days). Exceptions are made for hotels and roominghouses, e.g., sec 83.42, but the definitions and licensures accompanying those categories do not appear to be applicable to the average home or condominium owner simply looking to capitalize on an extra bedroom or a vacant unit. Rather, absent future regulations or revisions to existing law, the prospects for an AirBNB host looking to remove a nonpaying or holdover tenant will be controlled by the Act and require instituting an eviction action in the local county court. In addition to hundreds of dollars in fees and service costs, pre-suit three day notice will also be required in the event the removal is ground upon non-payment. The process can easily span 45-90 days and cost up to several thousand dollars in legal fees and costs for those reliant upon the hiring of an attorney to pursue the eviction.

Thus, in addition to the myriad of zoning, master lease, property association, licensing, insurance and other considerations to be undertaken before participating in online rental applications such as AirBNB, the property owner should carefully vet the guests and be mindful (in advance) of what measures will be necessary should a dreaded “squatter” take up residency. This is yet one area where consultation with an experienced Florida landlord/tenant attorney can be invaluable – as they say, “an ounce of prevention is worth a pound of cure.”


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