Airbnb is claiming a major win in New York City with a new ruling that throws out a $2,400 fine lodged against one of its customers. Last September, East Village resident Nigel Warren used the service to rent his bedroom to a pair of Russian tourists. The city found out and responded by slapping his landlord with the fine.
Warren — and Airbnb, intervening in the case — argued that because his roommate was home at the time and actively participating in the rental, Warren was exempted from a 2010 adjustment to New York State’s multiple dwelling law meant to crack down on illegal boarding houses.
The law anticipates that you may well have relatives, friends and friends-of-friends stay over at your apartment from time to time. But the judge who first ruled in the case found that renters must “share the life of the dwelling with its permanent occupants,” and are not “complete strangers who have no, and are not intended to have any, relationship with the permanent occupants.”
That social bond, the thinking went, was meant to check against the possibility that you’re running a tenement. (There’s a provision that provides for the chance that you might hand your keys over to a friend when you’re away, but in that case no money should change hands.)
This new ruling sides with Warren and Airbnb in finding that the earlier judge had invented the “‘mingle’ test” requiring that you know the person staying in your place. In other words, the Board was willing to entertain the notion that you can indeed “share the life” of your dwelling with someone who is a “complete stranger” to you apart from their Airbnb profile. David Hantman, Airbnb’s global public policy director, called the ruling a “huge victory”:
In the appeal, we and Nigel argued — and the appeal board now agrees — that under New York law as long as a permanent occupant is present during a stay, the stay does not violate New York’s short term rental laws. Much of the New York law is confusing, with some provisions applying to certain buildings and not to others. But this shared space provision was crystal clear. We intervened in this case because the initial decision on Nigel’s case was so clearly wrong, and we are pleased to see that the Board agreed.
You can hardly blame the company for pouncing on this piece of good news, especially as it faces negative attention like in the Los Angeles neighborhood of Silver Lake, where some residents are miffed about how much their neighbors use Airbnb. But it’s also a bit like calling Kennedy vs. Nixon a landslide. The way Warren and his roommate used Airbnb — to rent out one room in a shared space — is a fringe case.
That’s especially true in New York City, where having a spare bedroom is akin to owning a unicorn. As one “Julie” put it in a comment on Hantman’s post, “I don’t get it… the host has to be present? When is that ever going to be the case?”
Tenancy law, in this case, was bent outward to encompass a marginal use of Airbnb. But it’s an awkward fit. It might suit Warren and his roommate, but it leaves scores of other rentees out.
So the debate continues, and Airbnb knows it. The challenge now is to redefine what constitutes a “stranger” in 2013 — or, alternatively, to figure out some better distinction when the goal is to prevent tenements but allow people to get full use out of the spaces that they are, after all, paying for.
One possibility is to let renters do whatever the heck they want with their space for, say, 30 days or fewer a year. According to Airbnb, some 300,000 people have stayed in New York City using the service, and the vast majority of New Yorkers who rented out their places have done so for a week or less, generally when they were away on vacation or a business trip.
Airbnb wants that data to drive the conversation. In the meantime, it’s still rather precarious to be a rentee in New York.
Nancy Scola is a Washington, DC-based journalist whose work tends to focus on the intersections of technology, politics, and public policy. Shortly after returning from Havana she started as a tech reporter at POLITICO.