A radical proposal: Squat Airbnb hosts' homes to create affordable housing

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Airbnb offers lots of neighborhoods and amenities for San Francisco's homeless to choose from.

When I interviewed attorney Joseph Tobener for the story in our current issue on Airbnb being used to take affordable housing units off of the apartment market, he had a interestingly radical idea for get the attention of this scofflaw company and its political supporters, striking a blow for housing justice in the process.

What if hundreds of people, including many who are now homeless, rented out apartments in San Francisco for a night or two and then simply refused to leave?

Under tenant laws in San Francisco, renters have rights from the very beginning, and legally getting rid of someone who paid for just one night through Airbnb could require a long, difficult, and costly eviction process. Hundreds at once would overwhelm the courts and the deputies who carry out evictions for the Sheriff’s Department.

“That tenancy on day one law to me as a radical seems like a great way to address homelessness,” said Tobener, who got a call for advice from a doctor who sometimes hosts guests through Airbnb and faced that precise problem.

He isn’t the only one, as we at the Guardian learned and reported last summer, when San Francisco Rent Board spokesperson Robert Collins confirmed Tobener’s interpretation of the law and said the agency has already seen several such cases.

As I wrote in “Into Thin Air” on Aug. 6, “Tenants who rent out their apartments for a few days can even lose their rights to reclaim their homes. Collins cited multiple cases where subletters refused to leave and returning tenants had little legal recourse because ‘they would not have a just cause to evict the subtenant because, if they've rented the entire unit, they aren't themselves a resident in the unit.’”

Even in cases where landlords rent out units they own, San Francisco’s 1979 rent control ordinance gives tenants rights to due process from the very beginning, making it difficult to get rid of Airbnb guests who decide to become squatters.

Sure, such a radical response to Airbnb’s impacts on the city may be breaking a few rules and hurting the credit records of those involved — but is that really any worse than the whole host of laws that Airbnb and its customers are violating in San Francisco everyday? It’s at least interesting food for thought. 

UPDATE 2/11: Just to clarify, Tobener isn't actually advocating or organizing a campaign to squat in Airbnb apartments. This idea was, as I wrote, "food for thought," something to ponder, a little thought experiment as we try to address Airbnb's illegal business model and the city's affordable housing crisis. 

Comments

which you would have known if you had read the replies to the same erroneous statement you made earlier today.

Of course, in practice any host with a brain would smell a rat when seeing that the guest who wanted to stay lives in San Francisco. Why would anyone rent a room in the town they already lived in.

Plus landlords develop a sixth sense for activists, advocates and assholes (I use those words interchangeably)

And I suspect some of these activists would probably find physical force used against them to evict them because they would be trespassing past the noon hour. While if they resisted that and posed a threat to the owner, force up to deadly force can be used to protect your home and family.

Throw in that your idea is snide, immoral, illegal, dangerous and ineffective, and I'd say you have done what you always do and hopelessly overplay your hand.

Posted by Guest on Feb. 10, 2014 @ 5:46 pm

"First of all, a person gains tenancy (or becomes a tenant) in an apartment by living there for 30 days and paying rent. They also gain all rights under rent control (if their building is under it) and state law. No actual written lease is needed in order to be a tenant. Of course, it is better to have something in writing to be able to prove the terms of your tenancy. A tenant in an SRO (Single Room Occupancy hotel) gains her rights under state law after 30 days and her rights under the rent ordinance after 32 days"

http://www.hrcsf.org/subletting_basic.html

Posted by Guest on Feb. 10, 2014 @ 5:59 pm

Exempt Units:

"Units in hotels, motels, inns, tourist houses, rooming and boarding houses, where the unit has not been occupied by the same tenant for 32 or more continuous days, provided that the landlord has not recovered possession of the unit from the tenant in order to avoid the application of the Rent Ordinance"

http://www.sfrb.org/index.aspx?page=1036

Posted by Guest on Feb. 10, 2014 @ 6:05 pm

That's the issue. And as long as you're doing your legal research, you'll find lots of provisions in the codes that Airbnb violates, so feel free to cite those too. 

Posted by steven on Feb. 10, 2014 @ 6:12 pm

There are just apartments that may sometimes to be let under Airbnb. They may or may not be under rent control. And rent control rights themselves vary according to whether the Guest owns the unit or rents it themselves.

Posted by Guest on Feb. 10, 2014 @ 6:20 pm

live/work lofts.

Better do some research before you try and pull this stunt.

Posted by Guest on Feb. 10, 2014 @ 6:22 pm

overnight guest contravenes ANY city or state law.

There's the tax issue but that doesn't address the right to do temporary lets - only the way it might be taxed.

Posted by Guest on Feb. 10, 2014 @ 6:23 pm

Yes, it violates many local laws, read this for details: http://www.sfbg.com/2013/08/06/thin-air

Posted by steven on Feb. 10, 2014 @ 6:48 pm

been based on your theory that such lets are illegal?

Posted by Guest on Feb. 10, 2014 @ 6:59 pm

It's not a theory, it's a fact acknowledged by various top city officials and even Airbnb itself, which has been working with Board President David Chiu on legislation for almost a year to address the issue. I cited the laws in my cover story, you can read them yourself. But the city has been unwilling to enforce the law, at least partly because Mayor Ed Lee and Airbnb are both invested in by venture capitalist Ron Conway.  

Posted by steven on Feb. 11, 2014 @ 11:15 am

should come to a dead stop at a stop sign or red light.

But in that case, it's completely different, right?

Can you really find no worthier or more noble cause than a few San Franciscans trying to make a little pocket money on the side?

Really?

Posted by Guest on Feb. 11, 2014 @ 11:31 am

This has nothing to do with cyclists. You might as well be yammering about tax deductions, speed limits, or loitering, it would be just as relevant.

Come back when you have a point to make.

Posted by Guest on Feb. 11, 2014 @ 4:09 pm

dislikes, and zero enforcement on the laws he dislikes.

Posted by Guest on Feb. 11, 2014 @ 4:20 pm

We're guessing zero.

Evidently enforcing these alleged laws is not a high priority for voters. Can you imagine?

Posted by Guest on Feb. 11, 2014 @ 11:33 am

You misunderstand the quoted language. This exemption under Rent Ordinance 37.2(r)(1) applies specifically to "hotels, motels, etc.". It does not apply to ordinary rental units being sublet on airbnb (i.e. -tenants, including subtenants, have the full protections of the rent ordinance from the moment their tenancy begins). On the other hand, if you rent a room in an SRO or at the Hyatt, you need to be there for 30 days to become a tenant living in a "rental unit" for the purpose of the SF Rent Ordinance. Steven's article is accurate.

Posted by Guest on Feb. 10, 2014 @ 10:18 pm

He is a guest, boarder or lodger, but has no rights as a tenant.

If he holds over, the owner can physically remove him or have the cops arrest him for trespass.

Posted by Guest on Feb. 11, 2014 @ 5:45 am

No, a tenant's right to the full list of rent control protections kicks in after 30 days, but a tenant is a tenant with certain rights immediately upon legally occupying a dwelling. Or as the 1979 rent ordinance (Chapter 37.2 of the SF Administrative Code) defines a tenant: "A person entitled by written or oral agreement, sub-tenancy approved by the landlord, or by sufferance, to occupy a residential dwelling unit to the exclusion of others." 

Frankly, I was also surprised to learn of this provision from the Rent Board during my reporting last summer, but that's the law and it's already one being used to squat other people's apartments in San Francisco, according to the Rent Board. 

Posted by steven on Feb. 10, 2014 @ 6:08 pm

because your casual suggestion could get a guest in a great deal of trouble, and not least because a judge would not look kindly at some duplicitous intent, and would probably see the guest was engaged in deceit, which can invalidate their contractual rights and leave them exposed to personal liability.

I suspect the confusion is because certain rights are protected from day one even if they are not earned and vested until day 30. In practice it usually makes little difference because there is a huge difference between a short-term let and a let designed from the start to last more than 30 days. But you should be giving such glib, cavalier advice without thoroughly researching it.

You'd be better to honestly work to change the law than engage in guerilla tactics that might expensively rebound on your intrepid activist.

Posted by Guest on Feb. 10, 2014 @ 6:19 pm

Dude, leave Steven be. He obviously made a fool out of himself again. Have some compassion.

Posted by Guest2 on Feb. 10, 2014 @ 8:38 pm

Your comment makes no sense. Literally, you just wrote gibberish. The San Francisco Rent Ordinance requires a landlord (including a "master tenant") to have one of the 16 enumerated just causes to terminate a tenancy. There is no difference between a "short-term let" and one designated from the start to last longer under the law because either way the law requires a just cause to terminate the tenancy. The expiration of a lease (even a short-term one) is not a just cause.

Posted by Guest on Feb. 10, 2014 @ 10:25 pm

An airBnB guest does not have a lease. He has a permit to stay for one night only as a temporary paying guest. No tenancy is established or can be assumed.

Posted by Guest on Feb. 11, 2014 @ 5:46 am

liable for the rent for all the days he was squatting, at $150 a day or whatever it is, plus legal and administrative costs.

How many activists are willing to risk 5 or 10 grand of their own money to this?

Posted by Guest on Feb. 10, 2014 @ 5:48 pm

You can have a nice and pretty judgement signed by a judge that says you're entitled to collect $25,000 from Tenant X, but good luck trying to collect, especially from a foreign tourist or a judgment-proof tenant.

If you know how the landlord-tenant system works in SF, you'll know that it's more likely you'll be paying the squatter just to leave your unit, and you'll be thrilled you got them out within two months and it only cost you $12,000 in legal fees.

Posted by Guest on Feb. 10, 2014 @ 6:34 pm

And why would a foreign tourist risk a tangle with the much-feared American justice system?

Personally, if I get a judgement against someone, I will pursue them for the rest of their lives, using garnishments, liens, attachments until I collect. Oh, and 10% a year interest accrues, The debtor can never safely buy a home, marry, take a job, invest or do anything else normal.

But hey, go ahead, make my day.

Posted by Guest on Feb. 10, 2014 @ 6:39 pm

yeah good luck with that. How do you garnish non existent wages? How to you collect 10% interest on payments never made? I would love to see a citation that backs your presumption that you would be able to set the interest rate in the first place.

Sorry, not sorry, I popped your little fantasy with reality.

Posted by Guest on Feb. 11, 2014 @ 4:27 pm

Evidently you know nothing.

Anyway, it's moot, because a lower like you would never pass even the most basic of credit checks

Posted by Guest on Feb. 11, 2014 @ 4:32 pm

"yeah good luck with that. How do you garnish non existent wages? How to you collect 10% interest on payments never made?"

LOL. Let me explain, my little droog.

Once you have a legal judgement against you, the moment you get a job, inherit some money, or acquire any money in any other way that is on the books, any collections agency that has been hired or assigned the judgement will sweep in and grab that money.

They are willing to wait ***years*** to collect, as the judgement magically increases 10% a year through the magic of compound interest.

Google "Cashcall collections" if you want to see examples of what collection agencies are willing to do to collect.

If you don't want to pay the judgement, you need to resign yourself to working off the books for the rest of your life.

Posted by Guest on Feb. 11, 2014 @ 5:25 pm

You are full of shit as usual.

Bad stuff falls off your credit record after seven years.

Collection agencies do not go to court for small amounts and there is a statue of limitations in California of four years on a written contract.

Go crawl back in your hole troll.

Posted by GlenParkDaddy on Feb. 13, 2014 @ 6:55 pm

And are easy to get.

Posted by Guest on Feb. 13, 2014 @ 7:40 pm

Property liens in the State of California (and most other states) have a validity period of ten (10) years.

Posted by Guest on Feb. 21, 2014 @ 1:57 pm

diligent (or obsessive) creditor can keep them forever. Even after his death, his Estate can pursue the debt.

And there's 10% interest every year while he waits.

Posted by Guest on Feb. 21, 2014 @ 2:12 pm

Good luck getting a judge to enforce what amounts to an illegal contract.

Posted by Guest on Feb. 19, 2014 @ 3:19 pm

"right" to squat in a place after a one-night rental based on duplicity and deceit.

To win before a judge you need "clean hands" and lying isn't a great start to establishing that.

Posted by Guest on Feb. 19, 2014 @ 3:43 pm

Judges don't get leeway on what laws they apply. If there's a due process requirement before a landlord can evict anyone from their unit, you better believe a judge will follow the due process rules, regardless of their personal convictions.

While it's true that judges tend to come from the elite classes, whose families own rental real estate, stock and bonds, and while it's true judges generally rule in favor of litigants who also come from the favored elite economic classes, once a judge violates established due process procedures, you can bet they will lose their law license and their judgeship. A judgeship is too cushy a job for even the most biased judge to risk losing their seat. Thus, due process will be followed.

A landlord (almost) always gets their rental property back because of the disproportionate protections of the property owning landlord class verses lowly tenants. But they have to play by the rules. If they can get the tenant out of the unit within two months at a cost of under $25,000 in legal fees, they should be very happy.

Posted by Guest on Feb. 19, 2014 @ 4:54 pm

judge can and will find for the homeowner. In fact, the judge can instruct that criminal charges of trespass be entered.

An overnight rental is fundamentally different to a month-to month tenancy.

Of course, the bigger risk to a trespasser is violence, as previously noticed. I would show zero tolerance to a home intruder.

Posted by Guest on Feb. 19, 2014 @ 5:09 pm

"Your honor. I only expected to stay in the unit for the five days I paid for, but I met the most wonderful man here and now I'm confused. I'd like to stay in the unit until I can find other living arrangements. This landlord accuses me of fraud, but he's lying. I changed my mind after I entered into the rental agreement."

Thus, a trial is ordered for the fraud accusation and unlawful detainer action, and the tenant's counter-lawsuit of landlord slander. Expect to pay thousands of dollars for a long discovery process and tens of thousands in legal fees.

As I say, if you can get the tenant out within two months for under $25,000 you'll be the happiest landlord alive. My guess is that you drop the lawsuit in exchange for giving the tenant $15,000 and two weeks to move out, assuming you'e hired a smart landlord attorney.

Posted by Guest on Feb. 19, 2014 @ 6:18 pm

I don't care what the law is. If I'm on the jury for a case like that, I vote not guilty. If I can't convince my peers, fine. It only takes one of me on any given jury to create a mistrial.

I'm betting that at least 1 in 12 SF citizens agree with me.

Posted by Greg on Feb. 19, 2014 @ 6:40 pm

trespass, extortion and so on.

And you'd never be selected for a jury because, by your own admission, you'd ignore the law, the facts and the judge and instead be biased and prejudicial

Posted by Guest on Feb. 20, 2014 @ 7:25 am

I could get selected without any problem. My background, demeanor and appearance in no way give away my views on the system. And I would know exactly what to say and what not to say. That's a big "if" of course. Usually I say exactly what needs to be said to stay *off* a jury, because my time is much more valuable. Fortunately there are enough poor and unemployed people with plenty of time on their hands who think just like I do. That's why conviction rates are appropriately low in San Francisco.

Oh, and for what it's worth, jury nullification is legal. The system goes to great lengths to prevent juries from using their legal right to interpret and make case law, but they do have that right.

Posted by Greg on Feb. 20, 2014 @ 7:57 am

to be selected for a jury on a trial where you have already made up your mind?

Posted by Guest on Feb. 20, 2014 @ 8:18 am

Judges lie to juries in their instructions. Prosecutors withhold evidence. And cops just lie through their teeth. Surely you've heard the joke that every lawyer knows:
"How do you tell if a cop is lying on the witness stand? His lips are moving!"

Posted by Greg on Feb. 20, 2014 @ 8:49 am

Because others do it too?

And so if I lie on a jury to convict an innocent black kid, that is OK as long as, like you, I feel passionate about it?

Great attitude you have.

Posted by Guest on Feb. 20, 2014 @ 9:07 am

The statement that "you changed your mind" proves bad faith and fraud, as well as criminal intent.

But it would never get that far because you would be forcibly removed for trespass.

I'm almost tempted to take you on just to teach you a lesson, but of course you would bottle out.,

Posted by Guest on Feb. 19, 2014 @ 6:41 pm

Wow. You make so many great points. And since it's so easy, why don't YOU do it first and report back on how you were victorious, okay?

Posted by Guest on Feb. 19, 2014 @ 6:42 pm

He'd never do it

Posted by Guest on Feb. 19, 2014 @ 7:05 pm

law where deceit and foul play are employed, as in the manner that Steven is unwisely advocating here.

I personally would LOVE it if an activist tried this on me. I would bury him.

Posted by Guest on Feb. 19, 2014 @ 5:13 pm

civil disobedience too - in response the judges kept them in jail until they signed binding agreements not to violate the law. After a week most of them broke, in the end they all did. Turns out months of shitty food, strip searches and restricted visits with family broke the back of that civil disobedience movement - and it'll break the back of this one too.

The power of the state can be awesome when brought to bear against zealots who feel they're above the law.

Posted by Guest on Feb. 19, 2014 @ 5:50 pm

host would call the cops for trespass. When the cops show up they ask the trespasser to provide proof that he lives there e.g. signed lease or utility bill, or even mail for them. Since the trespasser would have none of that the cops would forcibly remove him and/or arrest him.

The cops don't care about civil matters but they do require proof that the guest has a right to be there (and the host for that matter).

Steven's idea is dumb and would land a lot of people in trouble and debt, if not worse.

Posted by Guest on Feb. 19, 2014 @ 6:07 pm

Cops hate getting into the middle of civil suits. It's the easiest way for them to screw something up, maybe get sued by one of the parties and maybe lose their job. Also remember that cops and sheriffs aren't the brightest people in the world.

Once a tenant shows a receipt for staying in the unit, even if it's for previous days, they'll walk away from the dispute and tell the landlord to contact a lawyer.

Remember that the only reason to do performance squats is to target landlords who are illegally renting their units on craigslist, Airbnb or other short-term rental companies. The entire purpose of the performance squat is to raise awareness of the landlord's illegal behavior, the loss of affordable housing and issues of equity and fairness. If you think a cop wants to get in the middle of that, you're greatly mistaken, especially when people are there videotaping the entire ordeal.

These performance squats will be targeted to landlords who thumb their noses at zoning regulations and possible health and safety violations. The squatters will ahve plenty of time to document irregularities with the building, maybe even discovering illegal building code violations. Tax evasion may come up too when the landlord's tax returns are scrutinized during the legal discovery process.

The idea is to find the most egregious landlords for targeting, not some family who has rented their house for a week or two. Wake up, take a seat, hire a lawyer and smell the popcorn.

Posted by Guest on Feb. 19, 2014 @ 6:32 pm

I've been on the scene in these situation and the cops show zero tolerance to anyone without clear proof they have a right to be present.

And that's the good solution for you. You don't want to know what the bad solution is, trust me.

Posted by Guest on Feb. 19, 2014 @ 6:46 pm

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