May 9, 2016

A Victorian tribunal decided that the owner of a two-bedroom Melbourne apartment could not evict their tenants who had listed the abode on accommodation sharing platform Airbnb.
The landlord attempted to give the tenants the boot early this year after receiving intel from neighbours regarding the tentants’ steady stream of house guests, who turned out to be users of the home-sharing platform.

Landlord Catherine Swan had her claim thrown out by the Victorian Civil and Administrative Tribunal in what is thought to be the first authoritative case on the matter of subletting technicalities raised by Airbnb listings.

Tenants Barbara Uecker and Michael Greaves were served a notice to vacate the St-Kilda apartment in January that was listed on the short-stay site at $160 for a one night drop in.

Swan produced two Airbnb advertisements to the tribunal, one of which stated ‘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.’

Swan had to demonstrate in her effort to evict the tenants, that the house share – where Ms Uecker “takes care of my guests as if they were family” – was in fact a tenancy and contravened the ‘no subletting’ term of the lease.

VCAT member Kylea Campana ruled – because the Airbnb arrangement gave the stop ins only a license to occupy – the element of exclusive possession necessary to constitute a sublet was absent and it therefore did not fall foul of the tenants’ lease.

The Tenants Union of Victoria supports the decision, arguing there is no difference between having Airbnb guests and having a friend or family member stay over.

Property lawyers warn though that tenants should be careful in listing their rental property on Airbnb as it risks breaching rental agreement.

Any landlord concerned should seek legal advice and consider including specific conditions in a lease to prevent tenants using properties as Airbnb accommodation.

Likewise tenants who want that freedom should seek it to be specified in their agreement.

Ms Swan is appealing the decision.

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