Air BnB-eware

| 17 Feb 2015 | 01:06

Increasing number of eviction proceedings stemming from use of apartment-sharing websites

Many New Yorkers have probably noticed the apartment-sharing startup Air BnB in the news lately. State Attorney General Eric Schneiderman subpoenaed the company for records of users he believes are using it to illegally book apartments. Air BnB is fighting the subpoena, saying that users who abuse their platform are promptly kicked off and the AG's move amounts to intrusive government snooping into the lives of its customers.

But what's not at the forefront of the discussion surrounding Air BnB are the increasing numbers of customers who have had to fight eviction proceedings because they rented their apartment using the site, or a similar one like VRBO.

"I think I've seen in the last six months probably four of these cases that I personally handled," said Samuel Himmelstein, a partner at Himmelstein, McConnell, Gribben, Donoghue and Joseph. His firm caters exclusively to tenants, and is the largest firm of its kind in New York. "Before this, there was just a tiny little handful. The reason I think there's such an uptick is how publicly accessible Air BnB is."

Most lease agreements in New York stipulate that an apartment cannot be subletted - no matter the duration - without the landlord's prior approval, and that the apartment cannot be used for business purposes, i.e., making money off of it. As a result, many New Yorkers who use apartment-sharing websites stand a good chance - knowingly or not - of violating their leases.

State Senator Liz Krueger - who in 2010 passed the "illegal hotel law" to fight the proliferation of apartments being used to capitalize on the transient tourist market, something Air BnB has been accused of enabling - said she knows of landlords who actively search for their properties on Air BnB and similar sites, looking for tenants who are renting their apartments in violation of their lease so they can start eviction proceedings against them.

Air BnB has said that Krueger's law was never intended to be used against everyday people renting out their apartments and that the majority of Air BnB hosts in New York are "regular New Yorkers just trying to make ends meet." They also claim to have helped New Yorkers stay in their apartments by functioning as an extra source of income, and said their New York community will contribute $768 million in economic activity this year alone.

Economic forecasts aside, for those New Yorkers that share their rent-regulated or rent-stabilized apartments, using sites like Air BnB can be very dangerous, said Himmelstein. In a poll of lawyers at his firm, he said there's been 12-14 such cases in the last two years.

"It's not just rent-stabilized and rent-controlled apartments," said Himmelstein. "It's Mitchell-Lama, NYC Housing Authority, any apartment in New York City which is subject to some form of government ownership, involvement or regulation, this activity is illegal."

New York tenant lawyer David Frazer said he's also handled several of these cases recently. In a case he took up just last week, the landlord bought the property in which his rent-regulated client - an Air BnB host - lives and is "very aggressively going after all the tenants for any reason that he can come up with to try and create turnover in the building."

Frazer said he's seeing these types of cases in Manhattan and the trendy areas of north Brooklyn. Himmelstein said he's taken cases in the Village, East Village, and Chelsea.

Both lawyers agree the number of eviction cases that stem from rent-regulated and rent-stabilized New Yorkers sharing their apartments on sites like Air BnB will continue to rise.

"It's already happening," said Himmelstein.

"Definitely," said Frazer. "With all of the publicity Air BnB has generated for itself fighting Schneiderman, it's put more landlords on notice."

However, both Himmelstein and Frazer said so far they've been successful in avoiding forced evictions, though both have had clients who took buyouts of their rent-regulated apartments from landlords to avoid the possibility of walking away empty handed if they lost in court.

"One of my clients had to give up his apartment because they had him dead to rights," said Himmelstein.

"If you're doing this you're giving the landlord ammunition to come after you," said Frazer. "And even if ultimately you can succeed, it can be a very nerve-wracking and expensive proposition."

Technology as a weapon

A decade ago, said Himmelstein, landlords were cruising websites like that provide in-depth real estate data for properties across the country. Landlords were looking for other properties their rent-regulated tenants owned that they could argue were the tenant's primary residence, and which they could use as the foundation for an eviction case.

"All of the sudden there was an uptick in non-primary residence cases," said Himmelstein. "That was the big thing between 2000 and now, but now Air BnB is the latest thing where landlords can use technology against tenants."

In response to a series of questions posed to Air BnB, spokesperson Nick Papas replied with a link that was found on the bottom of the homepage warning users to check local laws before listing their apartments. Papas also said New York users are presented with a message during the "listing flow" reminding them to check local laws before they can make a listing appear on the website.

In an experiment, a reporter successfully listed a faux apartment on Air BnB in the West Village and no such reminder presented itself. After a request for clarification, a different spokesperson revealed that in the fifth of six steps, the page where a host enters the street address of the apartment they're listing, a reminder about New York regulations and leases is found after scrolling to the bottom of the page.

As for those measures being adequate, Frazer said they're "several clicks away in the small print. It's a very lawyerly move on their part but it smacks of bad faith. They're really benefiting from a lot of actual law-breaking, and that's a morally gray area to be operating in. They really have to step up to the plate and take responsibility for their business." .model."