Today’s WSJ article by Mike Vilensky http://www.wsj.com/articles/airbnb-wins-big-name-allies-in-albany-battle-1470788320 discusses the “Airbnb” bill that passed the State legislature in June, but that has not yet been signed by Governor Cuomo. His signing has come under intense lobbying, with the Airbnb side arguing that signing this bill is anti-tech or anti-business.

According to Sherwin Belkin Esq., Belkin Burden Wenig & Goldman, all the bill actually does in fact is make the person that advertises for an illegal rental liable for the fine, as opposed to the owner, who had been fined, even if the owner knew nothing about the illegal rental.

Mr. Belkin is available for interview, to further discuss the pending legislation, and explain why it does not penalize Airbnb as those in the tech industry allege.

Here’s why Airbnb is illegal:

Renting an apartment on a short term basis (less than 30 days), except in certain specified instances can violate, among others, the following:

• The terms of the lease (which restricts occupancy);
• The Administrative Code of the City of New York and Multiple Dwelling Law (which both limit short term rentals);
• Real Property Law 226-b (which governs sublets);
• Real Property Law 235-f (which governs roommates);
• The Rent Stabilization Law and Code (which, when applicable, limits rents).

Unfortunately, the City took the position that the subject of its enforcement powers was limited to the property owner – even when the illegal renting was solely the doing of the tenant; even when the owner had no knowledge of the illegality; and even when the owner had even tried to put a stop to the illegal practice.

At the very end of this year’s legislative session, both houses of the State Legislature, passed a bill intended to address this inequity; the bill awaits the Governor’s signature). The bill:

• Makes it unlawful to advertise the occupancy or use of dwelling units in a class-A multiple dwelling for purposes other than permanent residence.
• Contains a civil penalty --against the advertiser-- of not more than $1,000 for the first violation, $5,000 for the second violation, and $7,500 for the third and any subsequent violations.
• Defines the term "advertise" as any form of communication for marketing that is used to encourage, persuade, or manipulate viewers, readers, or listeners into contracting for goods and/or services as may be viewed through various media including but not limited to newspapers, magazines, flyers, handbills, television commercials, radio, signage, direct mail, websites, and text messages.

So, the bill does not, as the tech folks argue, create some new impediment to Airbnb or similar entities. What the bill does is place the onus and liability on the proper person. That has been missed in much of the media sources covering the Airbnb saga. In essence, the tech folks argue that their business model should be immune from NY law, rather than simply complying.

Sherwin Belkin

A New York City-based real estate legal expert, Mr. Belkin has represented owners in numerous matters in State, Federal and Appellate courts, as well as proceedings and hearings before the New York State Division of Housing and Community Renewal, Attorney General's Real Estate Financing and Consumer Frauds Bureaus, U.S. Department of Housing and Urban Development, New York City Commission on Human Rights and New York City Department of Housing Preservation and Development. He has been practicing real estate and housing law for more than 30 years.