New York City has a housing problem. If you’ve ever tried to find an apartment there, you’ll either find yourself saying, “yeah, I can put 90% of my income toward rent. I’ll just eat a lot of rice.” Or: “This place isn’t so bad. The toilet is in the living room, but I can work with that.” True story: when I moved to New York years ago, I came thisclose to renting someone’s attic crawl space. The weirdest part was competing against 12 other people for that crawl space.
It’s little wonder that so many NYC renters turn to services like Airbnb to make a little extra money on the side. But there’s been a growing problem in which landlords have been converting residential properties into “illegal hotels,” some of which have proven to be unsafe.
A couple of weeks ago, inspectors cracked down on a Manhattan renter named Nigel Warren for renting out his apartment via Airbnb. Now, Airbnb is announcing that it provide money and resources to help Nigel fight the case. It's a solid move for Airbnb, as the case had many assuming that Airbnb is now illegal in NYC.
There is some murky ground here, as there is a reason hotels are regulated. NYC apartments have different regulations depending on the tenant. Tenants that don’t have children, for example, are not required to have window guards. But if you turn around and rent your apartment out to a tourist with children, then you’re posing a safety risk to your guests.
Airbnb maintains that the law crafted in 2010 was meant to crack down on illegal hotel operators, not “average New Yorkers.” And they sort of have a point. If you’re paying you’re rent, who’s to say who you can and can’t take in as a guest? That’s where things get murky. The “shared space exception” in the law allows hosts to rent out their dwellings as long as they are present during the guest’s stay. Nigel Warren argued that his roommate was present during the stay.
But a judge didn’t see it that way. The “shared space exception” mandates that all common living areas be accessible to the guest. In the case of Nigel Warren, Judge Clive Morrick declared that the exception was not satisfied because the guest did not have access to the entire apartment: specifically, Nigel’s roommate’s room (which is apparently a common living space, in Morrick’s view).
Morrick also called the commerce aspect into question. When Warren argued that the Russian tourist was simply his guest, Morrick declared that that was not the case because Warren and the tourist did not maintain a personal relationship.
The whole shebang puts Airbnb in a tight spot, as many are now asking the company how it plans to protect hosts from such crackdowns in the future.
“While we did intervene in this case on a important point of law that seems clear to us, we cannot provide individual legal advice, and every case has its own specific facts,” wrote Airbnb’s public policy expert David Hantman, in a blog post. “The laws governing different buildings in New York and individual rules put in place by co-op boards or leases vary. That is why we ask hosts in our 35,000 cities around the world to check the law in their own city and their leases as well.”