As a tenant who goes away for work trips or short holidays once or twice a year, one of my plans to bring me closer to buying my own home is having someone stay at my place.
Airbnb has given me this flexibility and provides host protection insurance. However, it always comes at an anxiety-riddled cost where I don’t fully understand what my rights are.
My current rental agreement stipulates that permission must be sought to sublet, which the landlord must not withhold unreasonably. But when I asked I was denied.
Devon LaSalle from Tenants Victoria told me there is nothing definitive under the Residential Tenancies Act that defines if services such as Airbnb are considered a sublet and that this is currently under review by the Victorian Government. He says:
“The question of whether Airbnb could be considered a sublet is difficult to answer, as it may depend greatly on the case involved. There was a case last year where the Supreme Court ruled that a sublet was undertaken in that particular instance, which may give precedent to future cases of that nature.”
Legislation clear as mud
In that case, a tenant was issued a notice to vacate for using Airbnb.
The Victorian Civil and Administrative Tribunal found the landlord could not evict the tenants because they “had technically not sublet their apartment” and that the Airbnb platform “provided merely a licence to occupy” without “exclusive possession” and “the nature of the legal relationship between the tenants and Airbnb guests was not a tenancy”.
But that decision was overturned in the Supreme Court. However Justice Clyde Croft warned against the appeal being used as a test case for the legality of Airbnb in Victoria and said this case was about the particulars of the lease in question.
A spokesperson from Airbnb said that hosts should familiarise themselves with local regulations but that those regulations are “difficult to understand and outdated”.
“Some of the recommendations put forward are designed to restrict tenants from using services such as Airbnb. However, Tenants Victoria is concerned that the way these proposed changes have been written is so broad that they could be used against any guest a tenant has staying in their home if that guest contributes to the household in any manner. This includes short stays by family members, having someone housesit for you, or receiving overnight childcare.”
When I quizzed my real estate agent on my rights, including unreasonably withholding consent, my refusal was downgraded to a “we prefer you don’t but we leave it to you”.
But without any law to protect me, I worry about the consequences if something were to go wrong.
“Unfortunately, it is not uncommon for renters to avoid speaking up about issues for fear of retribution in one form or another,” LaSalle tells me. “The best thing any renter can do to avoid any issues with their tenancy is to know their rights and responsibilities.”
Why the big deal?
If I am allowing someone to stay at my place, I make sure they have an impeccable rating because all my belongings remain in the house.
Policy Officer Yaelle Caspi who appeared in the VCAT case for the tenants said, “We don’t see why this is any different to a tenant having a friend or family member stay as a guest”. I couldn’t agree more.
LaSalle elaborates: ‘Tenants Victoria believes that the tenant’s grant of ‘exclusive possession’ of the rental property gives them the right to make their own decisions about who they have stay in their home, regardless of whether payment or consideration is received.
‘The landlord is in no way disadvantaged when a tenant chooses to participate in services like Airbnb. The landlord still receives their rental payment from the tenant as usual, and the tenant is still ultimately responsible for any potential damage that could occur from guests they have in their home.’
Does Airbnb drive up rent?
Airbnb has been accused of worsening housing affordability by soaking up residential properties for tourist accommodation, while detracting from the available rental stock and pushing up rents.
But Airbnb says that in Australia, more than two-thirds of the listings are sharing the home the host lives in.
A report by the Tenants’ Union of NSW found that the home sharing did not appear to be pushing up rents, even in areas where this is prevalent.
Using Airbnb is a win for me and a win for the suffocating rental market, because using it will help me get out of it faster.
First home owner’s grants are great, but the flexibility to use Airbnb is a great way government can support potential home owners.
This includes making it illegal to add Airbnb-type clauses into rental agreements.
What governments can do
Earlier this month, the Victorian government decided not to allow apartment buildings to limit Airbnb use, thus protecting apartment owner rights. While tenants have welcomed recent reforms in NSW and Victoria including the right to have a pet, we’d love the government to do more to protect our rights.
As the Tenants’ Union of NSW report stated: “Tenants experience significant extra hurdles to enjoy their homes in the way that owner occupiers do. If Airbnb is accepted as a legitimate use of premises for occasional personal use, then there should be no restriction on tenants’ use of Airbnb which is not equally applied to owner-occupiers”.