Appeal – is an Airbnb guest a sub-tenant?

May 2, 2016

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An appeal has been filed in the Supreme Court from the VCAT decision in Swan v Uecker (Residential Tenancies) [2016] VCAT 483 and should be heard later this year.

In Swan v Uecker a residential tenant put the leased property on Airbnb without the landlord’s consent. The landlord then served a notice to vacate on the basis that the tenant had wrongly sub-let the property. The Tribunal held that the notice was ineffective because the arrangements between the tenant and the Airbnb guests did not amount to a sub-lease.  Reference was made to the Airbnb standard terms and conditions.

There has been some recent press over the decision and I have received inquiries about it, so it appears that the outcome of the appeal will be significant.

That significance is amplified by:

  1. the Victorian Supreme Court decision in Janusauskas v Director of Housing [2014] VSC 650, which upheld a decision from the Tribunal in Director of Housing v Janusaukas (Residential Tenancies) [2014] VCAT 42 to make a possession order when a public housing tenant had used his apartment on a similar website known as ‘Couchsurfing’.  In that case, the Tribunal found that the arrangements between the tenant and the ‘couch surfers’ constituted a sub-lease;  and
  2. the recent VCAT decision of Alex Taxis Pty Ltd v Knight (Residential Tenancies) [2016] VCAT 528 in which VCAT held that guests from Airbnb did not occupy the residence as sub-tenants (see paras [30] to [31]).

Follow my blog for further updates as they emerge.

About Sam Hopper

Sam is a property and insolvency barrister.

View all posts by Sam Hopper

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