Tenants have scored a win as Victoria continues to grapple with the Airbnb phenomenon, after a tribunal found a St Kilda landlord could not evict tenants who had listed their apartment on the website.
The landlord attempted to kick the renters out earlier this year after other residents in the building informed her the apartment was being used as an Airbnb.
But in what is believed to be the first authoritative case of its kind, the Victorian Civil and Administrative Tribunal threw out Catherine Swan’s claim last week, finding Barbara Uecker and Michael Greaves had technically not sublet their apartment.
Advertisements from Airbnb were tendered as evidence by the landlord. Photo: Peter Braig
On February 1, Ms Swan applied to VCAT for a possession order. But the tenants testified that she could not prove the allegations because their neighbours who saw the Airbnb guests did not attend the hearing.
They withdrew that defence during the hearing after it was pointed out they had conceded to renting the apartment out in their written submissions.
Ms Swan also produced for the tribunal two advertisements for the apartment on Airbnb, including one which read, “Since this is my home and I am leaving to allow you to have it all to yourself, I simply ask that you observe the normal courtesies [sic] such as being considerate about noise for the neighbour’s sake and being careful with my TV, stereo and kitchen amenities.”
Member Campana found Airbnb did not give guests a lease but a licence to occupy. Photo: Pat Scala
To evict the tenants on grounds of an unapproved sublease, Ms Swan had to show the Airbnb rental was a tenancy and contravened the terms of the lease.
In deciding whether the apartment was leased, member Kylea Campana looked at whether Airbnb guests had “exclusive possession” of the apartment – the right to use premises to the exclusion of all others, including the landlord himself.
The tenants relied on the wording of Airbnb’s agreement, which states the platform provided merely a licence to occupy and use a rented premises. They argued Airbnb guests were not granted a right of exclusive possession and, therefore, had not sublet the apartment.
Debate over the legislation of sharing platforms like Airbnb continues. Photo: Airbnb Australia
Ms Campana agreed: “Without an entitlement to exclusive possession, I am satisfied that the nature of the legal relationship between the tenants and Airbnb guests was not a tenancy.”
The Tenants Union of Victoria, which appeared in VCAT for the tenants, supported the decision, saying it gave greater clarity around the issue.
“Tenants should have the right to utilise the property as they wish, so long as they are upholding their responsibilities as a tenant,” policy officer Yaelle Caspi said.
“We don’t see why this is any different to a tenant having a friend or family member stay as a guest.”
Slater and Gordon property lawyer Anthea Digiaris said Victorian tenants could call upon the case in VCAT in the future.
Based on the decision, Ms Digiaris advised against a landlord serving a notice to vacate on the grounds the tenant was “assigning or subletting” a property by using it as an Airbnb. Instead, she suggested they consider serving a notice based on other sections of the Residential Tenancy Act.
Russell Kennedy principal Rosemary Southgate said despite the finding, tenants should be careful in using their rental property as an Airbnb because they risked breaching their rental agreement.
“Although the tenant in this case successfully defended the eviction, there is a real risk that this type of conduct could place a tenancy at risk of termination,” Ms Southgate said.
Both property lawyers recommended any landlord concerned seek legal advice and consider including specific conditions in a lease to stop tenants using properties as an Airbnb.
All newly compiled residential tenancy agreements by Brad Teal Real Estate will house a clause disallowing tenants to use the property as an Airbnb.