By David Lu
With the summer tourism season now in high gear, many visitors to our city will use Airbnb to find their accommodation of choice. So, what happens if an unauthorized Airbnb is discovered at your condominium?
Generally speaking, Airbnbs are often regulated through a Condominium Corporation’s governing documents. While some condominiums explicitly permit Airbnbs in their governing documents, other condominiums prohibit them. A common method for condominiums to prohibit Airbnbs is by passing a rule restricting the length of a time a unit owner can rent out their unit. We often see condominiums requiring unit rentals to last a minimum of 4, 6, or even 12 months.
Other condominiums prohibit Airbnbs through a “single family use” provision in the Declaration. At these condominiums, the use of the units is restricted to what is allowed under the definition of “single family use”. The Courts have interpreted these provisions to prohibit Airbnbs as it contravenes the intent of these provisions to (typically) ensure that the unit is used for a residential purpose.
What happens when an Airbnb is found at a condominium that prohibits them? Typically, the first step would be for either the property manager or a member of the condominium’s Board of Directors to communicate with the owner. Often, the owner simply doesn’t know that a prohibition exists. In our experience, once informed, many owners understand the reasoning behind such a prohibition, and work with the condominium to ensure that they comply going forward.
If the initial correspondence doesn’t work, and Airbnb bookings continue to occur, the next step may involve a formal letter to the unit owner from the condominium’s legal counsel regarding the prohibited use. Depending on the circumstances, the associated costs of such a letter may be charged back to the unit owner.
If correspondence from legal counsel does not work, the last (and most drastic) step would be to commence legal proceedings against the unit owner. Under the Condominium Act, a condominium is entitled to recover all of its reasonable expenses incurred to obtain an owner’s compliance with the condominium’s governing documents. For an owner who is renting out their unit in contravention of the condominium’s regulations and rules, this could mean that they could be responsible for tens of thousands of dollars in costs at the end of the process.
We have also begun to see some situations where the unit owner thought they were renting their unit to a tenant, but unbeknownst to them, the tenant sublets the unit as short-term rentals. Such unfortunate situations are more complex as the offending conduct comes from the tenant and not the unit owner. In condominium law however, unit owners are ultimately responsible for the conduct of their tenants. Thus, it is important for unit owners, when they discover what has occurred, to take immediate steps to stop the conduct. This can mean, in some instances, a proceeding at the Landlord Tenant Tribunal to evict the tenant(s).
Each condominium community deals with the Airbnbs differently. Often, disputes that may arise can be dealt with simply by talking with the unit owner. However, in situations where talking with the unit owner is not enough, there is a mechanism in place to address the issue.
David Lu is an Associate at Davidson Houle Allen LLP, a boutique Condominium Law firm serving Eastern Ontario.