Is an AirBnB guest a Sub-Tenant?

By Evelyn Marcou, Senior Associate, MST Lawyers

There has been some recent press over the VCAT decision in Swan v Uecker (Residential Tenancies) [2016] VCAT 483 which has now been appealed.

In this case, 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.

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]).

MST Lawyers will keep you updated with the progress of the appeal and the ultimate outcome.

For any residential or commercial Leasing advice, please contact our Property & Leasing team by email property@mst.com.au or by telephone Ph: +61 3 8540 0200.