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