AirBNB "squatters": A legal overview

First, apologies, because it’s been a while since I last wrote anything here. I went straight from a pretty involved project for a business client to my wedding to negotiating a surprise opportunity to buy a larger home to getting my current home ready for market, so I’ve been a bit busy. (If you happen to be looking for a 1BR with unbeatable location in Somerville, Massachusetts, send me a message.)

Note: The following is not “legal advice”, just an overview for educational purposes. The laws in this area vary by state and country, and it’s possible - as this example illustrates - to run into some serious problems by renting out a property without an understanding of rental laws in your jurisdiction, so if you are anticipating any legal problems arising from use of AirBNB or other methods of home “sharing” please contact a local lawyer.

AirBNB and the Law

AirBNB is fascinating for lawyers. For those unfamiliar with the company, it’s a web service that allows residential property holders to offer their apartments, vacation homes or even rooms in occupied homes for rent. The offeror is called a “host” and the renter a “guest”. Recently, AirBNB “hosts” who are property managers who have access to dozens or hundreds of apartments in large cities and offer them on a daily or weekly basis through AirBNB have been accused of running unlicensed hotels.

It’s an interesting study in the legal nature of business relationships in the “sharing economy” - similar to the “isn’t an Uber car just an unlicensed taxi?” debate. In most US jurisdictions, the law calls a person who’s paying a fee to use some real estate for a period of time either a tenant, subtenant or a hotel guest, depending on the terms of the rental and the nature of the owner’s business. One of the first steps in resolving a dispute over an AirBNB stay is deciding what the legal status of the host / guest relationship is.

AirBNB “tenant” becomes a “squatter”

I read an article this morning about an AirBNB host whose worst case scenario is playing out right now. The host used rented her Palm Springs, CA vacation home to a guest for a term of 44 days. According to the article, after 30 days the guest stopped paying, but is now refusing to leave.
If this had happened during, say, a one week rental, the host could have asked the police to help evict the guest. But under California law, somebody who rents a residence for 30 days or longer is a tenant and therefore entitled to the same legal protections as a person who leases an apartment. The host - now more appropriately called the landlord - must give a formal eviction notice and go to court to evict the tenant, and then recover back rent.

According to the article the unwanted tenant has “squatters rights” - but that’s not a correct use of that phrase. The legal term “squatter” in California law refers to somebody who takes possession of a vacant property, not somebody who overstays a lease without payment. Squatters rights are legal rights to such a property that a squatter can gain by occupying it for five years while doing his best imitation of a property owner and paying taxes on the property. If the true owner does not evict the squatter during the five year period, the squatter can claim ownership of the property. (Note that this is not how the law works in Massachusetts, where a squatter would have to occupy the property for 20 years under adverse possession law.)

Probably the most appropriate terminology to describe this AirBNB guest is “tenant at sufferance” - a tenant who has overstayed a lease without permission from the landlord. This is a fairly common scenario and one that has caused apartment building managers headaches for generations.

How does this work in Massachusetts?

In Massachusetts, according to a DPH opinion released in May, cities and towns may regulate AirBNB hosts as bed and breakfasts or lodging houses and require licensing. This means that you'll need to get in touch with the city clerk or licensing office in your city to find out whether there are any registration or taxation requirements for listing on AirBNB.

I Want to Host on AirBNB, So What Can I Do?

This section only addresses Massachusetts law, and is only a beginning. It’s not possible to examine all of the legal implications of home sharing businesses without writing a pretty large book on the subject. So if you have any questions, ask a lawyer who works in landlord / tenant law.

Hosting on AirBNB seems like an easy thing to do, but without preparation there are many ways to get into trouble. Would you lease your home to a tenant without a carefully drafted written lease, or open a hotel without reviewing the hotel licensing laws? Of course not - but many of the legal pitfalls for AirBNB hosts are the same.

Consider the host in Palm Springs. The problems she’s reporting go beyond a guest who won’t leave. According to her, the guest has also been running the air conditioning nonstop with the windows open and using much more than the normal amount of electricity, and is accusing the host of “negligent and malicious conduct” because the building has hard water. It’s not possible to avoid all potential problems, but being reasonably careful can decrease your risks.

First, make sure your own status is secure:

• If you’re a tenant, and you rent the home that you list AirBNB, you are offering your home for sublet. Many leases do not allow sublets, or require the landlord’s approval. It’s possible to get evicted from your apartment for listing it on AirBNB. So check your lease, and if necessary make arrangements with your landlord before you begin.
• Some condo associations and homeowner associations also have rules that may prohibit short-term rentals.
• Some cities and towns require registration or ban short-term rental entirely.
• If your home is mortgaged, your contract with your bank might not permit rental.
• Your homeowner’s or renter’s insurance might not protect you when you are renting your home.

Second, have a contract ready for AirBNB renters. Written contracts are a good idea in most business transactions. Review the AirBNB rules for when you must disclose to the renter that you require a written contract, and talk with a lawyer about what should go into the contract. Make sure your contract states that the rental is for “vacation or recreational purposes only”.

Third, limit your AirBNB rentals. The balance of legal protections shifts at 31 days and again at three months. If the rental is under 31 days, the host is exempt from most lead paint laws and evicting a nonpaying or otherwise problematic guest is relatively simple - though you might still need help from the courts, depending on the details of your situation. More than 30 days, and eviction requires 7 days’ written notice. More than three months and you have a tenant with full legal protections.

Contract outline for interiors projects

Note: This is not a complete contract in any way, just a broad and rough outline. I wrote it for somebody in Massachusetts, and the requirements will vary by state, country and project, so please speak with an attorney in your area if you need a contract for design work.

If you have any questions on this subject, or if you are in Massachusetts and need a contract for design services, please contact the author at Andrew@AndrewLynnLaw.com.

One of the services that I provide to architect and designer clients is contracts customized for the needs of a firm or project. A well written contract is essential because it sets up the scope and timeline of a project, manages the expectations of the designer and the client and gives you the rights of the parties and the procedures they will follow when something goes wrong.

A fellow lawyer recently asked me for an outline of a contract between a home owner and an interior designer. Here is what I wrote.

1. General: Describe the project, the participants in the project and the parties to this particular contract. Include normal contract-for-services language, such as choice of law, arbitration, termination, modification, complete integration.
2. Scope of Services: Describes generally the services that the designer will perform, and what services would be considered additional services. Additional services are work that is triggered by client requests or unforeseen circumstances and that is billed separately.
3. Project Phases: Lists the project phases: Design phases such as pre-design, design development, contract drawings; construction supervision; project close-out; and there may be others depending on the complexity of the work. Includes the services to be performed during each phase - in more detail than the general Scope of Services section - and expected dates of completion. There should also be a discussion of the completion of each stage: presentation of the deliverables to the client, and how much time the client has to approve the work or request changes.
4. Owner’s Responsibilities: What does the designer require of the owner? E.g., drawings to be provided, permit applications to be completed, access to the property, timely approval of design options.
5. Compensation: What will the designer be paid, and at what times? If additional services are requested, what is the compensation?
6. Delays: Describes the effects of delays. Delays caused by the client, by the designer, by the contractor, and by unforeseen circumstances will each be handled differently.
7. Estimates: If the designer is providing cost estimates, at what points in the project cycle will they be given, and how reliable will they be? Language should be appropriate to your jurisdiction and give the limits of the designer's liability for missed estimates if needed.
8. Intellectual Property License: Make a clear statement of which party will own the intellectual property, including copyright in the drawings. By default, copyright ownership goes to the creator, which is usually the design firm. The non-rights-owning parties (e.g. the building owner) will need a license for use of the drawings to build the project. Include limitations on those licenses, such as limiting their use to this project only. If building information modeling (BIM) technology will be used, include a BIM protocol section that makes it clear whether the BIM model will be available to the client and contractors. If it will be, and this is your first time writing a contract with BIM provisions, be aware that this is potentially a very complex matter and ask somebody with knowledge in the field for help.
9. “Boilerplate”: When talking with other lawyers I tend to refer to this section as something like “the usual terms in a contract for services”, which doesn’t sound interesting, but this is not to be overlooked, because the terms that go in this section define the procedures to follow when something goes wrong. Terms here include choice of law, arbitration, termination, modification, integration, nonpayment and others. This is very dependent on the law of the particular state or jurisdiction, and a good lawyer in your area who drafts contracts will know what to include.