Airbnb and Beyond: Tips for Safe, Legal Vacation Rentals

After a period of rapid expansion and positive attention from the press, person-to-person lodging Web sites led by Airbnb have experienced some growing pains of late. While we still recommend the use of these services, both travelers and hosts alike will want to take note of, and hopefully resolve, these issues before their next short-term rental of this type.

There have been a few very high-profile problems with private rental services, from trashed apartments to safety threats and even one surprising instance of guests using a rental for the world’s oldest profession. But this latest round of issues is simpler than that — to wit, it turns out that many of the folks renting out their homes may not have the legal right to do so.

As reported in the New York Times, hosts in New York and Paris have faced legal challenges; short-term rentals are restricted in many places for a variety of reasons, including concern for the well-being of the hosts’ neighbors and an attempt by local governments to preserve limited urban housing for residents rather than visitors.

The New York case above was resolved in September 2013 with a victory of sorts for Airbnb. It was determined that a host can rent out his or her own room as long as a permanent resident — such as a roommate — is still on the premises. However, renting out an empty apartment or house where you are not a permanent resident remains illegal.

In most cases, the law does not consider the traveler the offender — rather it considers the host the offender — so you are mostly in the clear. That won’t help if you experience a raid in the middle of your stay, however, or if you are subject to a more prosaic ejection, such as by the landlord — or even if you get the stink eye and a dressing down from unhappy neighbors.

And getting harassed a little bit or even ejected from your rental on mercilessly short notice could be the least of your worries. If something were to go very badly wrong, such as a theft of your belongings, your host may not be insured sufficiently or at all on your behalf, and you may find yourself without any clear protection or way to recover your losses.

All of that said, I love the idea of Airbnb. One of our editors has done a stay through the site, and I have used a competing service at HomeAway.com (for that specific stay, the Airbnb apartment we wanted was unavailable, and I was forced to try the competitors, which worked out very well in the end). Airbnb has had its share of controversy with wayward tenants occasionally trashing homes and engaging in illegal activities — but try finding a hotel that hasn’t had the same issues at some point. These incidents just get less media attention.

If you are considering using a private rental service, protect yourself by choosing your host property wisely. Here are some tips to help you steer clear of the most egregious threats and problems.

1. Focus your concerns on urban areas, apartment buildings and condos.

Although restrictions do exist for single family homes in some communities, on the whole most legal issues arise in the following areas or types of dwellings:

– Urban areas that have or are likely to have broad public laws regarding the subletting of housing (such as New York City, San Francisco, Paris and others).

– Apartment buildings, which are most likely to be occupied by renters and subletters rather than owners.

– Condominiums almost anywhere, as these tend to be regulated by condo associations, which very often have strict and clear restrictions on who can occupy the property. Rules may restrict whether children can stay overnight, whether pets can be on the premises, even whether the owner must be present at all times that anyone occupies the dwelling.

2. Ask the question directly: Do you have legal right to rent the apartment to me for the contracted dates?

Of course, hosts can simply lie, but you can sometimes read between the lines to figure out whether they are being truthful or not. If they fudge the answer a bit, or if they seem to be hedging, or even (and maybe especially) if they are offended by the line of questioning, you may want to look elsewhere. A host with nothing to fear and nothing to hide will neither shy away from nor resent a straightforward question that in the end protects both of you.

If you need more assurance, it seems reasonable to ask for a copy or scan of the pertinent passage in their lease that allows subletting or short-term rentals, with any personal information such as Social Security numbers, legal names and the like redacted. As more and more folks ask for these types of documents, you may find that the more active and conscientious hosts have this information readily available.

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3. Or take a more indirect approach.

If you prefer, or if you are not getting the answers you need given the direct approach, you can ask simply if the host owns the dwelling, or if he or she is a renter or subletter themselves. If the answer is the latter, your risk is a bit more obvious; at that point you can often search the Web for information or discussions about subletting practices in most cities.

4. Be prepared for disputes.

This is one area where, for travelers, all anecdotal evidence indicates you might really be on your own if something doesn’t work out. Whether the property is misrepresented in some way (like a listing that says “has cable” turning out to mean “has cable if you bring your own TV”), or if you run into real trouble such as no-show hosts, thefts, unsanitary conditions or worse, the various listing services have been almost entirely uninterested in getting involved at this point in their relatively short time in business.

In this case, you might check if your travel insurance can offer any protection — and at the very least have a backup plan such as researching a couple of affordable hotels nearby.

5. Read the listings carefully and ask a few questions.

Like any “advertisement” for lodging, listings will often put the best possible spin on the property features. This seems fair game to me — but it falls to you, just as with a hotel, to ask questions and do your homework. Find out if it is in a good neighborhood, if the place is noisy, what kind of parking is available, if there’s a curfew, if you can cook, etc.

If you do these five things, you should have a good feel at least for the most critical vagaries of heading to someone’s private home. From there your mileage may vary, as with any lodging option, but at least you won’t run afoul of the law — or of even just your most meager expectations for a place to crash.

A Note on Couchsurfing Sites

Many of the issues that can afflict short-term rental sites may not always apply to couchsurfing sites, simply because no money changes hands. Only the most draconian leases dictate whether you can have people stay at your house, irrespective of how well you know them.

All of that said, the liability and insurance concerns stated above likely still apply, and as a couchsurfer, you may be exposed in these areas.

Safety Tips for Airbnb Hosts

1. First check your lease and/or condo association rules and documents, and if you aren’t permitted to sublet or rent out your apartment, maybe think about another way to make spare change that doesn’t put both your residence and your guests in jeopardy.

2. If you live in the type of building that might give renters pause, but are legally allowed to rent to them, make this fact very clear when you create your listing. You might even put it in the title — maybe something like “Upper West Side 2-Bedroom LEGAL” — to distinguish your offer from those that may or may not have this part figured out.

3. Prepare or even display a redacted document as described above that shows the actual language that makes your rental a legal rental. If you have done this work up front, you spare your renters from even thinking about it, let alone forcing them to ask, or worse, clicking away from your rental listing.

4. Answer questions clearly and promptly. A host that seems honest and on top of things offers something not everyone does — peace of mind. The value of this simple notion cannot be underestimated.

5. Perhaps speak to neighbors about the practice of having folks in your property, and do whatever is necessary to offer them comfort and consideration. This will make them a lot less likely to create problems for you or your renters.

If all of this seems a bit alarmist, well, I have to agree. But as a one-time New York City apartment dweller for a dozen years, I can sympathize with the neighboring tenants. Had one of my direct neighbors turned their apartment into a hotel, with different people coming and going all the time, all with keys to the common front door, I think I might have had some concerns.

And as these types of short-term rentals become more common, whether through Airbnb, HomeAway or any other service, and the best-located and popular rentals get a lot more foot traffic, you are going to find more folks offering them, and more landlords and neighbors getting upset and filing complaints about them.