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Tenant Question: Help! My Landlord Started an Eviction Case Against Me for Doing Airbnb in My Apartment

Aug 28, 2021

Hannah from Roosevelt Island asks:

My landlord is suing to evict me because I did some Airbnb. Although I’ve been a full-time tenant, I have occasionally rented out the apartment on Airbnb and other sites. This past Fall my grandmother took ill, so I spent a lot of time back and forth to England, where my family is. At the same time, my job allowed remote work. So, to help pay my rent and because I was traveling so much, I took on a lot of short-term guests.

The landlord recently sent me a notice to terminate my tenancy with printouts of my Airbnb profile and the apartment listing attached. Then the landlord began a holdover proceeding, seeking to evict me. As soon as I got the termination notice, I immediately stopped short-term rental activity. I called the landlord repeatedly to discuss the issue and sent a letter with an affidavit confirming that all short-term rentals at the apartment had stopped and apologizing for the transgression.

Here is my question, why is no notice to cure required? Don’t I get a chance to cure; to fix it? To stop doing short-term subleasing and resume my tenancy?

I wish I had seen your Tenant Learning Platform Class on How To Do Airbnb Legally in Your NYC Apartment before I went down this road.

Better Late Than Never,

Hannah

Instructor Michelle’s Answer:

First, before I answer the question, you made a terrible mistake by sending the landlord that affidavit. You basically admitted to the behavior for which the landlord is terminating you. That was not a smart thing to do before speaking to a lawyer. I understand the landlord apparently already has your Airbnb profile. But that alone might not be enough to prove landlord’s case in court. You can learn a lot more about that in How To Do Airbnb Legally in Your NYC Apartment. Now to answer the question…

It depends. You did not indicate whether you are a Rent Stabilized tenant. If you are Rent Stabilized, then the sin of Airbnb is less about illegal short-term leasing (which might be curable) and more about profiteering, which is very much not curable as per appellate case law. The definition of “profiteering” is beyond the scope of this answer, but is covered in great detail in How To Do Airbnb Legally in Your NYC Apartment. So, first I would have to know whether you are Rent Stabilized and, second, I would need to see what basis the landlord used for the termination. Some landlords use nuisance as a basis for an illegal short-term leasing termination and nuisance also does not require a notice to cure because nuisances are deemed incurable. Other landlords use a violation of a substantial obligation of the tenancy, which typically would require a notice to cure. The bottom line is that you never want to be where you are, having to seek out a lawyer to figure out the intricacies of a lawsuit and possible defenses thereto. You really need to speak to your lawyer immediately about the current case against you. Then, take the How to Do Airbnb Legally in Your NYC Apartment course and hopefully you can make better decisions in the future on this topic.

I am ethically obligated to say the following. No attorney and client relationship is established because I have answered your question. It is obviously impossible to fully assess the matter this quickly. The above is not actionable legal advice. Therefore, you should NOT rely upon any legal opinions provided by me in this post concerning any matter.

Respectfully submitted,

Instructor Michelle Itkowitz

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