Airbnb renter claims tenant rights in San Francisco

15 Comments

• 

  Neal June 9, 2014

  IMHO, Ms. Rifkin has a very strong case here. As an attorney who handles many tenants rights cases, this one intrigues me.

  Mr. Preston’s statement about a tenancy being created after 30 days (as opposed to the transient occupancy until the 30th day) is correct. I note that the “hotel tax” that we pay when staying at a hotel is not a sales tax (hotel rooms is one of the few things California doesn’t tax at the state level for use/sales tax), but a tax called the “Transient Occupancy Tax” or “TOT.” This tax, which usually rings in at about 14-15% in major hotel markets like LA, SF, SD, Beverly Hills and West Hollywood can only be collected for the first 30 days that a guest stays in a hotel. Once the hotel guest stays beyond 30 days, the stay is no longer considered transient, and the rights of tenancy are created (and the ability of the municipality to collect the TOT through the hotel as agent ceases.)

  A tenancy cannot be ended by calling the police and reporting someone as a trespasser. SFPD was dead wrong here. The proper procedure under CA law would have been for the landlord to serve Ms. Rifkin with a “Three-day notice to pay or quit,” a procedure under California law which would give her 3 days to pay all rents in arrears with the consequence of non-compliance being that she would be found to be unlawfully detaining the premises.

  Even if she were unlawfully detaining the premises, it would not be the SFPD who would initially remove her; it is a summary court proceeding which takes place. After the tenant’s failure to pay based on the 3 day notice, the Landlord would have to file an unlawful detainer suit in SF Superior Court. The amount of rent in arrears would determine which division of the Superior Court would have jurisdiction.

  The tenant would then have the right to answer the lawsuit, raise affirmative defenses, challenge the sufficiency of the lawsuit (usually through a Delta motion), conduct discovery, and then eventually have a trial. This could take 20-90 days depending on which procedures the tenant invokes and how backed up the court is.

  If, after trial (either by jury or a bench trial), it is found that the tenant has been unlawfully detaining the premises, the Court will order possession to the landlord. A writ of possession is then sent to the Sheriff. The Sheriff then posts a 5 day notice on the premises, advising that the person will be locked out in 5 days, and that the person must vacate and take all possessions.

  Sounds to me like SFPD grossly violated Ms. Rifkin’s rights. Based on what I have seen here, it looks like Ms. Rifkin has causes of action against both the Landlord and SFPD. And while AirBnB has a contract in which they essentially disclaim all liability for transactions between the guest and host, their agent, in advising the host to call the police, went outside the scope, committing an ultra vires action, and IMHO, exposing AirBnB to liability. (I suspect they had liability anyway notwithstanding their contract.)

  There’s probably plenty of blame to go around here, including Ms. Rifkin, the SFPD, and AirBnB.
• 

  Ric Garrido June 9, 2014

  @Neal – thanks for the legal insight.

  I think there will be follow-up articles in the paper about this case.
• 

  Neal June 9, 2014

  @Ric, my pleasure. I’ll be interested to follow this one. Please post any updates that you come across.
• 

  yw82go June 9, 2014

  Very interesting – thanks Ric and Neal. I have several friends and relatives who rent out rooms thru AirBnB and have never had a problem. But they also have never had a renter for more than 5 days as far as I know.
  It just goes to show you, it’s always something…
• 

  ptahcha June 9, 2014

  As a landlord by circumstance (condo is “under the water”), this is exactly what I’m afraid of. Tenants can squat during the entire legal trial period rent-free for non-payment, and it’s up to the landlord to follow the law.
• 

  DJP June 9, 2014

  I am more shocked at the police here than necessarily the situation. The police should know the rules governing this kind of situation of landlord/tenant laws.

  In living in any large city, there are a number of people who live out of motel rooms for extended periods of time.
• 

  Jose June 9, 2014

  Garbage people garbage behaviour, I feel sorry for the old man
• 

  Robbo June 9, 2014

  They are both idiots, he for even letting her get behind in the rent, she for thinking she can get away with it. I put it expert lawyer person, if the woman hasn’t paid her rent, then she’s illegal. What a piece of work she is, “stress” !!! What a load of garbage, pay your rent woman, if she thinks she can get away with it, why doesn’t the old fella sue her for robbery. The piece of work has stolen from him. All I can say is ” Only in the USA”
• 

  Neal June 9, 2014

  @Robbo, if the woman has not paid her rent, and has no legal justification for withholding the rent, she is indeed guilty of unlawfully detaining the premises. In an action for unlawful detainer (commonly known as an “eviction” proceeding), if it is found that the woman has unlawfully detained the premises, the Court will enter judgment against her for the full amount of back rent owed, plus court costs, plus possibly attorneys’ fees of $600. And in California, that judgment against her is valid and collectible for 10 years, renewable for another 10.

  But it is not for the landlord or the San Francisco Police Department to decide. It is for the San Francisco County Superior Court, a fair and unbiased tribunal, and a jury of her peers if she so chooses, who make that determination. In this country, we have due process. There is a presumption of innocence, not a presumption of guilt.

  The fact is that ignorance of the law is no excuse. After 30 days, this woman had a non-transient tenancy, which could only be terminated by following an established procedure within the law. I don’t know San Francisco’s local rent control ordinance as I practice in southern California, but rent control ordinances in California usually allow for evictions based on just cause, and non-payment of rent is almost always considered to be a just cause. The landlord should have followed the procedure established in law, and not called the SFPD. Self-help evictions are not legal in California. And the SFPD should have known better.

  I’m not defending people who don’t pay their bills. I’m defending the law and due process. Want a long-term tenant gone because he/she isn’t paying rent? Fine. Just follow the law. Period.
• 

  ODTravel June 9, 2014

  This is why lawyers are the worst! The absolute worst!
• 

  MaryE June 10, 2014

  Man, it’s people like this who screw up potentials for the rest of us. Airbnb is a perfect way to go job hunting, or move into a new area all over town and check out a place from every angle for awhile before deciding to either get an apartment, or just another airbnb place. Airbnb is going to be the new normal I think for some of us global nomads.
• 

  Charles Clarke June 11, 2014

  @Neal – This statement in the SFGate article intrigues me: “Airbnb’s operations currently flout a San Francisco ban on rentals of less than 30 days.”

  If her rental was based on an illegal contract, how does that affect the situation? Does that nullify everything. Her right to a room and the landlord’s right to collect back rent?

  As a landlord, I’ve learned to not let tenants get away with anything because then they want to walk all over you, just like this woman.
• 

  Neal June 11, 2014

  @Charles, that is an interesting question, and I suspect that someone could make the argument that the first short stay contract was void because it was a contract for illegal activity. That gets really messy because of various legal doctrines like promissory estoppel, detrimental reliance, unjust enrichment, quantum meruit, waiver, unclean hands, etc.

  However, I would probably argue that was NOT a rental for less than 30 days. This was a 75 day rental, payable in shorter periodic increments. While most of us are accustomed to paying rent on a monthly basis, there is no law that I am aware of which actually requires monthly increments. As long as the contracting parties agree, rent can be measured and paid in any cognizable increment of time.

  I don’t see much of an upside to arguing that the contract was illegal and therefor void ab initio. You can’t restore the parties to their position before the contract was formed. Ms. Rifkin stayed there for 75 days. That can’t be undone. And Mr. Thayer – a retired attorney – certainly wouldn’t want to part with the money that he did receive. And I just took a quick glance at § 41A of the SF Administrative Code. That is a horribly worded statute, and subject to multiple interpretations.

  I do hope that the SF Board of Supervisors does clarify the law. But as I see it now, Ms. Rifkin was a tenant, and deserves tenant protections.

  And as to your contention that tenants will mercilessly walk all over you given the chance, I think that the same can be said for landlords. Landlords generally aren’t the nicest bunch!
• 

  Charles Clarke June 12, 2014

  @Neal – good answer. Though I’m not sure Mr Thayer knew it was a 75 day rental at the start. If he knew she planned on staying for a longer time than the initial term, then I could see the argument that rent could be collected on a shorter basis than monthly. I’m not surprised at a horribly worded statute. I find most of them are that way. That’s why there is so much case law. 🙂

  I expect that the landlords you meet handling tenant rights cases are the bad apples. Try going to an Apartment Association meeting and meet the nice ones. They are also the ones most likely to know the laws. In my city, Mr Thayer would need to have his place registered as a boarding house, if not a motel. And yes, I think a retired attorney has a better chance of knowing the law than the rest of us. I expect that those landlords willing to break the law(and AirBnB does in a lot of cities) is also willing to cheat tenants.

  The best answer I have for tenants that don’t have the money for the full deposit, rent, etc. is that if their friends and family, who should know them better than I, don’t trust them enough to help them, why should I. In this case, she has a friend who would let her stay, so Mr Thayer could have rented to a paying customer and neither would have had to deal with the stress here.
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  Charles Clarke June 12, 2014

  BTW, since it may not be clear. I don’t think most tenants are bad, not even most of those who ask for a special concession. If I thought that, I’d be a fool to be a landlord! It is just that once you let them get away with something, some will keep on pushing. Or expect that they can do something all the time instead of it being a special situation. That path leads to no time and no money because landlords like me will get rid of those tenants and those who put up with them will be stuck with them.

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