Subletting through Airbnb: allowed or not?

Subletting social housing via Airbnb remains a thorn in the side of housing associations. In practice, a ban on subletting in the rental agreement does not prevent tenants from subletting their homes anyway. An increasing number of housing corporations are therefore forced to employ residential fraud teams to track down and end these illegal practices. Recently it was in the news that enforcers of a housing corporation in Amsterdam detect about four hundred cases of housing fraud every year.

Dissolution of lease?

Many housing corporations indicate on their websites that subletting the home through Airbnb leads to fines and dissolution of the lease. Judges, however, are not yet in agreement as to whether dissolution of the rental agreement is allowed in such a case. Indeed, there are both rulings in which dissolution was granted in similar cases (e.g. ECLI:NL:RBAMS:2015:4335) and rulings in which dissolution was not granted (e.g. ECLI:NL:RBAMS:2016:3568). The main question for the court to answer here is whether subletting the property through Airbnb constitutes a breach large enough to justify dissolution of the lease.

Important factors

A number of factors, given the line of case law, appear to be critical in answering that question. A first important point is the frequency with which the tenant has sublet his home. If the subletting is incidental, it will be less likely to lead to a justified termination of the lease than if the subletting is structural. In addition, the question is to what extent it must have been clear to the tenant that subletting his home via Airbnb is also not permitted. After all, subletting via Airbnb is a relatively new phenomenon. Moreover, the nature of subletting through Airbnb cannot be compared to normal subletting, as Airbnb involves a very short period of time. If the tenant has been informed of the subletting ban and he immediately stops subletting, this may be an indication to the court that the default is not big enough to justify dissolution. Another important factor has to do with the primary residence of the tenant himself. If the tenant has maintained his main residence in the rental property, this is less likely to lead to a justified dissolution, because in this way the property is not withdrawn from the social housing market.

Tip housing associations

Although the above factors have emerged in case law so far, that does not mean that other factors will not play a role in this issue in the future. For example, a ruling by the Amsterdam District Court on March 4, 2016, shows that the likelihood of a justifiable rescission increases if more attention is paid to the prohibition on (and consequences of) short-term subletting through websites such as Airbnb. So inform tenants explicitly about how the housing corporation will deal with short-term subletting via sites like Airbnb!