Dave’s here to answer your questions every Wednesday, so send them to him at tenant@sfappeal.com, here’s what to make sure to include in your letter.

airbnb.jpegI’d like to list the apartment I rent (long-time, rent-stabilized) on Airbnb in hopes that someone staying in my apartment while I am on vacation will help cover the expense of my trip. It is not my intention to make a business of doing this, as some renters and most especially some landlords seem to be doing. I just want to offer my place to someone who will enjoy it while I am away – I once did a swap and many times have had house/cat sitters while on vacation. But obviously this is different in that it involves money changing hands and through a third party.

I’m pretty sure my lease says no “subletting,” but is what I want to do actually “subletting” if I am not assigning the lease to someone else, just taking money from a house guest?

If this would be a lease violation on the subletting clause, what is the real risk to me should what I am doing come to the attention of the owner? If they would take an action, would it be a final action (unlawful detainer) or more like a cease-and-desist, warning not to do this type of thing? (I’m actually not sure the current owners are in possession of a copy of my lease post-Lembi and receivership, but in case they are…)

I am aware of pending legislation regarding taxes on Airbnb rentals – which would be fine with me – but I’m not clear about how what is being proposed would apply to a situation like mine.

Short answer: If your lease requires the landlord’s written permission to sublet, get the landlord’s written permission and have at it.

Many tenants are confused about the definition of subletting. If you lease a premises, even on a month-to-month basis and you charge another person to rent the entire premises or a portion of the premises without somehow changing the lease by adding her as a tenant, you are subletting. You are the only person liable to the landlord to perform the various obligations of your lease.

So you can understand why I get pissed off when I hear that a landlord accuses a tenant of illegally subletting when the tenant’s partner frequently stays overnight. No rent is changing hands. Landlords often use this ploy to embroil tenants in costly ligation and don’t care if the accusation is true or not. It’s almost always a ploy to remove a rent controlled tenant to increase the rent–a dishonorable, scumbag pretext.

If I was your landlord, I’d give you permission to sublet your apartment so that you could take a vacation. I think vacations are a necessary part of life. But I’m not your landlord and, never will be for that matter. If you read my column, you know that I believe that many landlords can be parasites, and that being a landlord can be a dishonorable profession, even if it’s temporary.

I also think that the City should enforce a ban on renting apartments meant for tenants to tourists, essentially removing much needed housing stock from the market. It’s another dishonorable ploy to violate our rent control laws.

Notice that I’ve repeatedly invoked the concept of honor. It’s also dishonorable to try to go behind the landlord’s back to sublet your apartment without his permission.

If you read my column, you also know that I rail away against master tenants who sublet their apartments because, when they get caught, unsuspecting subtenants get evicted.

What can happen if you are caught subletting without permission? Plenty. Let’s say you’re at the base camp of Mount Everest and you get an urgent email (providing there is reception) from your “guest” telling you that the landlord has served a three-day notice to cure or quit. What are you going to do? Tell the guest to get out? Put him up in a hotel, tell the sherpas to take a hike and book a quick flight from Kathmandu to deal with this issue?

Meanwhile the landlord can develop a fairly solid case to evict you. Why? Well, for starters, he has a copy of the ad you put on Airbnb.

How much money did you think you were going to save?

That’s the point. Almost all dishonorable decisions these days are made in the name of saving or making money.

Dave Crow is an attorney who specializes in San Francisco landlord tenant law. However, the opinions expressed in these articles are those of the author, do not constitute legal advice, and the information is general in nature. Consult the advice of an attorney for any specific problem. You understand that no attorney-client relationship will exist with Dave Crow or his firm, Crow & Rose unless they have agreed to represent you. You should not respond to this site with any information that you believe is highly confidential.

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the author

Dave Crow is an attorney who specializes in San Francisco landlord tenant law. However, the opinions expressed in these articles are those of the author, do not constitute legal advice, and the information is general in nature. Consult the advice of an attorney for any specific problem. You understand that no attorney-client relationship will exist with Dave Crow or his firm, Crow & Rose unless they have agreed to represent you. You should not respond to this site with any information that you believe is highly confidential.

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  • cedichou

    How is landlord a dishonorable profession? I don’t understand this throwaway comment (even though I salute the overall advice of honesty).

    Not everyone can be a home owner, you’ll always have need to rent property. There’s nothing dishonorable with providing a service to the people who need the service.

  • cedichou

    How is landlord a dishonorable profession? I don’t understand this throwaway comment (even though I salute the overall advice of honesty).

    Not everyone can be a home owner, you’ll always have need to rent property. There’s nothing dishonorable with providing a service to the people who need the service.

  • billthebutcher

    My issue with AirBnB and the illegal subletting going on as a result stems more from a position of respect. I really can’t stand the idea of having someone who I have never seen nor know wandering around the building I’ve been living in for years. My own security, in my own building is now threatened because a neighbor wants to make a buck or two illegally. New tenants come and go but these people who use AirBnB come and go on the short term. I’ve had instances where these people disrespect the building as well as show no respect for other tenants because it’s not their space and they could care less about respecting other people.

    Sooner or later this is going to be a legitimate problem, someone is going to get robbed or worse because someone else in their building decided they could get away with breaking their lease. In fact, I’d be incredibly surprised if it hasn’t already happened.

  • billthebutcher

    My issue with AirBnB and the illegal subletting going on as a result stems more from a position of respect. I really can’t stand the idea of having someone who I have never seen nor know wandering around the building I’ve been living in for years. My own security, in my own building is now threatened because a neighbor wants to make a buck or two illegally. New tenants come and go but these people who use AirBnB come and go on the short term. I’ve had instances where these people disrespect the building as well as show no respect for other tenants because it’s not their space and they could care less about respecting other people.

    Sooner or later this is going to be a legitimate problem, someone is going to get robbed or worse because someone else in their building decided they could get away with breaking their lease. In fact, I’d be incredibly surprised if it hasn’t already happened.

  • Babe Scanlon

    Thank you for mentioning honor. More attention needs to be paid to acting with honor.

  • Babe Scanlon

    Thank you for mentioning honor. More attention needs to be paid to acting with honor.

  • Katie Marcet

    Renting out a house or apartment that you lease and do not own is the equivalent of stealing- people doing this know it or they wouldn’t hide it from their land lord. I rented an apartment on airbnb in Vermont and the person who rented it to me for the weekend came to give me the key. He urged me to not talk about airbnb because the walls were thin and he didn’t want his neighbor to hear because his landlord did not know he was renting it. I own a couple of rental properties and if I ever found out my tenants were renting them out on airbnb for profit I would evict them. That’s stealing! People are so entitled these days!

    • Dr. K

      You sound like a very entitled person yourself.

      • Katie Marcet

        Oh wow! Thanks “Dr. K” for enlightening me about how entitled I am for not allowing my tenants to rent out their units as vacation rentals without permission. You are right, it totally doesn’t matter that the lease they signed specifies that there is no subletting and that all residents be listed on the lease. I shouldn’t care that I have absolutely no say over who stays in my building. My tenants absolutely deserve to profit off of my hard work. I am such an entitled jerk!!! Oh wait…..the definition of entitled is as follows:

        en·ti·tled

        to give (a person or thing) a title, right, or claim to something; furnish with grounds for layingclaim: His executive position entitled him to certain courtesies rarely accorded others.

        2.

        to call by a particular title or name: What was the book entitled?

        3.

        to designate (a person) by an honorary title.

        I am “entitled” to dictate who I rent my units to because my name is on the title to my property- I have “claim” over it. I did not “entitle” my tenants to sublet their unit. I payed $487,000 for the building that I rent to tenants and I pay to maintain the property (these are very well taken care of, beautiful units) . People who rent out apartments that they do not own feel “entitled” but only the person who owns the building is “entitled” to choose who they rent to and they are the people who are “entitled” to profit off of their assets. See how that works Dr.? Understand the language you use before you use it. It doesn’t “sound” like I am very “entitled”. As the owner of a property I rent to long term tenants, I AM “entitled” to profit off my property.

        • Mathieu G-G

          That’s not stealing, that’s a breach of contract.

          • Kate Marcet

            Yes- it is a breach of contract. It is also the equivalent of stealing. Making profit off of someone else’s property without permission or legal right is stealing by definition. The definition is irrelevant however Mathieu- renting out a place you don’t own is just a rotten thing to do.

          • Mathieu G-G

            ??? “by definition. The definition is irrelevant” You have no clue what you’re talking about. Definition : ” To take (another person’s property) without permission or legal right and without intending to return it.” If you have problem with people renting what you rent them at a higher price, either you can’t accept how inefficient you are or you’re trying to stop people from earning a living. The money they make subletting is NOT yours. The person subletting his apartment with all his personal stuff in it is taking, I would estimate, ~75%+ of the risks. Beside that ~25% of added risk your contract protect you from where do you actually have a problem ?

          • Katie Marcet

            Your an ass or you just really don’t know what you are talking about. This is exactly the reason why so many people can’t find affordable housing anymore. Let’s just assume that you are right. Following that assumption- I should just rent out all of my long term rentals that I personally own on airbnb- I can make $3,000 a month instead of just a measly $700 a month renting to the families in my city who need a decent and affordable place to live. Otherwise I’m just plain inefficient as you put it. Also- I think we can all agree- when people refer to “subletting” they usually mean turning over their lease to someone else for an extended period of time. Airbnb guests who rent your home for a nightly fee for a minimum of one night are not considered “subtenants” as they have never even set their eyes on your lease, never the less actually signed it at the approval of your landlord (and yes, even lease agreements that allow subletting require approval and an application to be submitted for the new person wanting to sublet, just like the one that you yourself fill out before being offered a lease).

            I’m assuming you are renting out places you don’t own based on your “passionate” and defensive response.

            “The person subletting his apartment with all his personal stuff in it is taking, I would estimate _75% of the risks”

            — ugh…..so their things are worth more than my $250,000 house should they burn it down? Also- many of the folks renting out apartments they don’t own on airbnb have no personal things in the apartments what-so-ever….they rent them with the only intention of renting them out on airbnb without the knowledge or consent of their landlords. I rented one such place myself without knowing it. I didn’t figure it out until my “host” said “oh…and please don’t mention airbnb, the walls are thin and I could get in trouble”. His airbnb account listed several other “apartments” around town.

            We live in an entitlement society- just the fact that you are even making an argument over whether this is right or wrong at least proves that.

          • Mathieu G-G

            I think you underestimate the costs and amount of work required to rent a place for a night or two. I’ve used airbnb 6 times and all of them had various level of personal stuff in them.
            You know, things like furniture and walls.
            Who is responsible if the AirBNB guest make a hole in the wall ? The tenant.
            Who is responsible if the place is turned upside down ? -The tenant.
            Why would an AirBNB guest lit the place on fire anymore than the tenant ? There are insurance for that. The competition within AirBNB is happening at an extremely fast pace and BTW they’re not going after the business of long term rental. JUST SO YOU KNOW !