Airbnb & Short-Term Rentals


Orinda was ranked one of “America’s friendliest towns” by Forbes and hasn’t recorded a homicide in nearly a decade, and so this posh community was an unlikely place for a mass shooting in a short-term rental.

While Airbnb advertises its value as helping make sharing easy, enjoyable and safe, it was sheer panic when a quiet Halloween was disturbed as jolted neighbors heard screams and the sound of bullets at a party around 10:50 pm, sadly taking the lives of five young people and injuring several others.

The Halloween horror took place in a spacious home nestled on the hillside at 114 Lucille Way. After the mansion was listed on Airbnb by owner Michael Wang , a Lafayette woman was all too willing to rent this gem, purportedly telling the owner that her asthmatic family needed a dwelling with fresh air to escape wildfire smoke.

In planned attendance would be 12 guests, just one shy of the maximum occupancy limits found in Section 17.3.12 of the Orina Municipal Code, but did this storyline smell a little fishy?

Daniel Bornstein said that a one-night rental on a Halloween night in suburbia should have raised eyebrawls, telling KTVU Fox 2 that greater scrutiny should be applied to ensure Airbnb is a good citizen.

13 is enough

Cities have wide latitude in enacting ordinances that regulate the modern-day iteration of the temporary flop and in Oriana, the number of occupants is capped to 2 people per bedroom, plus 3 additional people. As for the Lucille Way property, only 13 people would be allowed on the premises under the city’s formula.

Notably, owners are bound by stipulations made in the city’s Short-Term Rental Registration and Transient Occupancy Tax Registration Certificate Form and must attest their compliance with noise and parking regulations, among other rules. With everything in order for the get together, the transaction proceeded without complication.

A close-knit family reunion seemed innocuous enough, but what actually followed was a steady stream of over 100 revelers into the doors after responding to a widely promoted “Airbnb mansion party.” Take a look at the viral flyer that was purportedly used to publicize the doomed event on Instagram. BYOB and BYOW stands for “bring your own booze,” and “bring your own weed,” never a good omen for unsuspecting owners who hand over the keys.

Who will pay for ‘Airbnb Mansion Party’ deaths, injuries?

This is the provocative headline question posed in a San Francisco Chronicle article that enlisted answers from a panel of attorneys, Daniel Bornstein among them. The consensus?  It is unlikely that any criminal charges will be filed against the homeowner, renter, or anyone other than who pulled the trigger, or accomplices that aided in the shooting.

“Individuals are generally not liable for the criminal conduct of third parties,” Daniel told the Chronicle, though homeowners can be criminally culpable if there is a foreseeable threat to short-term rental visitants and this threat is ignored.

For example, if the owner of a short-term rental knows that a balcony is structurally unsound, lists the property on a home-sharing platform, and people then fall when the balcony collapses, this can rise to the level of a criminal act. Or, if the owner rents to groups that are known to have “bad blood” and there is a reasonable expectation that a fight will break out, it may be criminal to put together this toxic brew of people. This doesn’t appear to be the case at hand, though.

When short term rentals go horribly wrong, all parties tend to retreat into a shell and use the common narrative that “it wasn’t me,” and we would expect nothing less in this case. Before we test that defense, let’s look at where everyone stands on the firing squad in any inevitable lawsuit.

Poll: Americans strongly support reforming federal law to rein illegal short-term rentals

Does the buck stop with the homeowner?

When bodily injuries occur in a short-term rental, most claims would be governed by premises liability law, a subset of personal injury law. Premises liability law is based on the notion that property owners have a legal duty to keep lawful guests safe. In the eyes of the law, Airbnb guests are considered “invitees” and as such, are afforded a high degree of legal protection.

The riddle to solve is whether the owner’s negligence caused or contributed to the havoc wreaked in the rental home . California Civil Code 1714(a) makes it clear that:

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person…”

The plaintiff must prove four elements, two of which should be clear cut in this massacre. The homeowner owned, leased, occupied, or controlled the Airbnb-listed property and certainly, the plaintiff or plaintiffs were harmed when invitees perished.

What is left for a judge or jury to decide is whether the owners were negligent in the use of maintenance of the property, and this negligence was a substantial factor in causing the plaintiff’s harm. This will have to be aired out in court, and what we have in law is competing narratives.

We know from the news feed what the owner’s account is. He claims that after receiving noise complaints from neighbors, he checked his home security cameras. After discovering a raucous party, the owner told the Chronicle, he called the police and was en route to the scene at the first sign of distress, but not before a hail of gunfire erupted.

“We called the police. They were on the way to go there to stop them, but before we got there the neighbor already sent us a message saying there was a shooting,” he was quoted as saying. Whether the owner’s watchfulness, attention, caution and prudence (what we call a duty of care) is enough to let the owner off the hook will be litigated in court.

In the blame game, the owner points the finger to Airbnb, saying that homeowners “can’t control” who rent their homes on the platform. “Airbnb does not release the customer information before they really book, so we have no way to know. We also tell them there’s a maximum [number of] people and no parties, but people lie.”

Airbnb will take exception, arguing it is not a puppet and points out the owner is the final arbiter of who gets the welcoming mat.

Whatever plaintiffs emerge, they will surely submit that the owner should have anticipated something could go wrong at 114 Lucille Way.

The mansion has been on Orinda’s radar for some time, after the city issued citations for violating local parking ordinances and exceeding the legal capacity of the home. Neighbor complaints over noise and large congregations put the owner on notice that this was a potential party spot, let alone Halloween night, and he was obligated to take extra precaution, the plaintiffs will likely argue.

“It wasn’t me” may or may not work for the owner. With this box checked, let’s move onto Airbnb to see if they can get a black eye.

We would fully expect Airbnb to assert they were far removed from the chaos and is not responsible for the actions of gun-toting guests. The peer-to-peer sharing company was merely a conduit between the owner and errant occupants, they will say.

Airbnb didn’t pull the trigger, didn’t load the gun, but did they hand the firearm to the perpetrator by making the ‘Airbnb Mansion Party’ available for the world to see? Before testing Airbnb’s defense and examining what liability may await them, their response to the shooting and some background is instructive.

No stranger to controversy and lawsuits the world over, Airbnb’s PR machine was quick to respond in order to get ahead of the disaster and try to win in the court of opinion. Brian Chesky took to Twitter announcing a ban on “party houses” and a commitment to clean house by removing bad actors. Although we have heard these pledges before, the CEO and co-founder promises to accelerate this process in a 10-day sprint.

We might express skepticism that any monumental change can be achieved easily or quickly. We noted in earlier posts that it has taken years to fight endemic discrimination in short-term rentals and bring these properties up to compliance with fair housing laws, and this bumpy road towards cultural change continues to this day.

Although the token ban on party houses and strong language was a PR necessity, it’s unclear how this disfavor against rowdy parties will be enforced, even with newfangled technology and a dedicated party house “rapid response team” being assembled. By their own admission to reporters, Airbnb said parties, weapons, smoking and marijuana were already banned under existing rules, so it now becomes a matter of increased monitoring and policing high-risk rentals.

No plans for metal detectors or drug-sniffing K-9’s in short-term rentals are being contemplated , but in an email to employees, Airbnb Co-Founder, CEO and Head of Community, Brian Chesky, shared a four-pronged plan to instill trust in an anarchy.

A donut hole in Airbnb’s litigation strategy?

When it comes to maneuvering the law, Airbnb has been proactive in suing cities that stand in the way of profits by enacting ordinances that remove lucrative, but illegal listings from their websites.

A recurring theme: invoking the Communications Decency Act, specifically one part of that act known as Section 230. That Section says that internet companies are not responsible for what users post on it. For example, if you post something defamatory on Facebook, you can be held liable, but not Facebook. Yet, many cities have punched back and debunked this logic.

There is a cogent argument that these websites do much more than publish other people’s ads. Short-term rental websites hold the hands of users, helping them register and post listings, connect hosts with prospective renters, provide a mechanism for ratings and feedbacks, and last but not least, put money in its coffers by taking a share of the proceeds. Under this theory, Airbnb is liable for facilitating third-party booking by essentially acting as a co-conspirator.

Airbnb is suing so it could illegally rent out homes in the city. Not exactly the type of behavior you would expect from good corporate citizen.  
~ Miami Beach Mayor Dan Gelber (Bloomberg Law, 1/4/2019) 

The courts’ interpretation of the 1996 law and the protections it affords Airbnb and its rivals has been put under a microscope, with varying outcomes.  Several federal and state courts have sided with cities by agreeing the high-profile unicorn is complicit in providing aid and comfort to owners who engage in illegal rentals.

With such a horrific event on its home soil, It’s with little surprise that the City of Orinda has entered into the fray, with proposals being floated to further reign in short-term rentals, if not ban them altogether.

Following the logic that Airbnb is so hands on and more than a matchmaker, can Airbnb be held partially responsible for the shooting deaths of five bystanders and the injuries of many more? Its convoluted and ironclad “Terms of Service” says no, but given the high profile of this case, you can rest assured that disclaiming the horrific event away will not be so easy.

A mass murder is not the garden variety of damage to a property that can go away by referencing 70 pages of fine print , so we expect that there will be a fight. As Daniel told the Chronicle, “someone will have to compensate someone for the harm that was generated in that house.” Given that there is hell to pay by somebody, Airbnb is a natural target with its deep pockets.

Of course, the vast and battle-tested legal team of Airbnb is well prepared to get into the ring. While the company’s core business model is home sharing, a close second is litigation, so they will be a formidable opponent for any enterprising attorneys that go after them.

What about the renter’s fault?

Unless we are getting misinformation, there is a prima facie instance of deception on the part of the renter, who indicated the colossal home would be utilized for a small gathering of family members, only to turn into an epic party for college-aged students.

Instagram user “tonecapone300” was ostensibly the host of the party, and undoubtedly a person of interest in a criminal investigation. Whoever is hiding behind this handle, they will likely resurface in any future civil litigation as the organizer of the doomed event.

This is a perfect storm of the risk you face when you arbitrage your house on Airbnb … You may be ‘sharing’ with people who you don’t know from a hole in the head.

~ Daniel Bornstein to the Chronicle

Many hosts assume that if calamity strikes their short-term rental, it will be covered by homeowner’s insurance. Not true.

Business activities operated out of a home is likely not covered. While some policies allow owners to rent the home to a limited degree, the insurance company might require advanced notice, or to purchase a separate endorsement. A host’s personal umbrella policy may also have no protection when it comes to a business activity. Airbnb’s “host protection insurance” says it will cough up to $1 million to protect against third party claims for personal injury or property damage. This amount seems meager for the loss of five lives, and there are many loopholes, so if you are looking to rent out your home, it’s best to consult an attorney to ensure all the I’s are dotted and the T’s are crossed.

Short-term rental insurance is a topic we will take on in a future post, so be sure to subscribe, or follow us on Facebook for the latest insights.


Airbnb may have won many people’s choice awards, but it hasn’t gotten many points with its hometown. Now, the city seems to have tamed the beast and emerged as the undisputed enforcer of the modern-day iteration of the temporary flop. San Francisco’s newly fanged Office of Short-Term Rentals no longer has to plea with billion-dollar platforms to remove hosts that flout the rules – they merely tell them to remove these bad actors.

In a nanosecond, thousands of straggling, unregistered Airbnb hosts got their listings deactivated, nixing nearly half of Airbnb’s listings overnight. That’s because when the clock struck midnight on Wednesday, January 17, a new law kicked in requiring hosts to register their property went into effect.

In that moment of reckoning, the rules become clearer. A short-term rental host that shows compliance with San Francisco’s laws and earns a license issued by the city is legal, and those who don’t follow the law are illegal and excommunicated – not open for debate or discussion. As part of the long-promised crackdown, 2,000 units were pulled off the site last Tuesday alone, ending an era when not having a license was no bar to ranking in cash.

The data is fresh and we are still analyzing it, but it appears that at least 6,000 short-term rental listings were removed through this process…. For Airbnb alone, around 4,760 listings were removed.”

~ Kevin Guy, director of S.F’s Office of Short Term Rentals

Joe Eskenazi has a riveting behind-the-scenes glance of the final countdown to the Airbnb registration at the Office of Short Term rentals.

San Francisco stands alone in putting such a dent in Airbnb’s listings, but who, exactly, is responsible for this dramatic turnaround? Their capitulation to demands is not owed to Airbnb itself or the city attorney, but to an “only in San Francisco coalition” that united odd bellows to organize, run campaigns, educate, and eventually support the Goliath to quit posting illegal listings, submits this article.

Regardless of the forces behind Airbnb’s about face, Bornstein Law has seen this day long in the making and feel somewhat validated by our predictions very early on in the parade that the law would catch up with technology.

Airbnb wins a lawsuit that threatened its entire business model

In a victory for profiteering renters that improperly sublet their units for extra cash, a federal judge has tossed out a lawsuit that sought to crack down on hosts using the Airbnb website without landlord permission. Denver-based Aimco took the fight to Airbnb in dual lawsuits in Florida and California, claiming that Airbnb was deliberately incentivizing people to break their leases. A judge rejected this argument, ruling that Airbnb was not responsible for any havoc that was wrecked by guests. That according to the Communications Decency Act, a federal law that gives internet companies immunity for content that users or random people post on their sites.

The takeaway for landlords? Don’t wear blinders, and some personal sleuthing may be in order to determine what is going on in their rental units. Owners can and must take corrective action if improper subletting is detected.

If history is any indication, we’re sure that it won’t be too long before Airbnb graces itself in the news again, but you can count on the landlord lawyers of Bornstein Law to help stay in the know.


Airbnb’s steely legal team is no stranger to litigation, whether defending an array of lawsuits around the globe or bringing their own fight to municipalities that stand in way of their conquest, including their home turf of San Francisco. After some scrapes and bruises with both wins and losses in their column, the battle-tested leader in short-term rentals just beat a game-changing lawsuit in California that threatened its very business model.

Themselves a goliath with roughly 50,000 properties under its management, Denver-based Aimco brought dual lawsuits in Florida and California, claiming that Airbnb was deliberately incentivizing people to breach their leases. More than just passively providing a platform for property listings, Airbnb is complicit in lease violations as a broker of short-term rental agreements and a processor of payments, was the gist of Aimco’s argument.

After some legal wrangling and gambits that did not prevail, Airbnb said in essence, “it wasn’t me” and cited the Communications Decency Act, a federal law that gives internet companies immunity for content that users or random people post on their sites. The nine-year-old company was not responsible for any havoc that was wrecked by guests, they submitted, and a federal judge agreed.

In tossing out the lawsuit, U.S. District Judge Dolly Gee found that Airbnb is indeed shielded by federal law and is not liable for the content that third-parties post on their website.

“Airbnb hosts — not Airbnb — are responsible for providing the actual listing information… Airbnb ‘merely provide[s] a framework that could be utilized for proper or improper purposes.’”

Aimco spokeswoman Cindy Lempke didn’t couch any words in her response to the ruling.

“Aimco has made the deliberate choice to expressly prohibit short-term rentals to unaccountable Airbnb users who have not undergone our background screening, who cause disruption for our residents, and who are apt to treat our apartments like hotel rooms rather than homes. We will continue to do all we can to stand up for our residents, advocate for our private property rights, and address the upheaval caused by Airbnb.”

If history is any indication, Airbnb’s legal quagmires are far from over, but this does mark a major victory for the company and more ominously, profiteering renters who rely on Airbnb to make some extra cash.

Our takeaway is that landlords should not wear blinders and some personal sleuthing may be necessary for them to ascertain what is going on in their rental units. Leases should be reviewed to ensure subletting restrictions in the modern day era of the temporary flop. If any aberrations are found, they should met with legal vehicles that can end the game of musical chairs.

It’s been said that the Internet is the world’s biggest experiment in anarchy, but with the law catching up with technology, the guidance of an attorney can restore order.

More than a Johnny-come-lately, Bornstein Law has been pioneers in short-term rental laws on Airbnb’s home soil, long before this phenomena reached critical mass.

The legal saga of Airbnb and other short-term rental platforms has been anything but transitory, but it seems that things are settling down and order restored.

September 14 sets a milestone in the storied history of Airbnb with its hometown city. That was the drop-dead deadline for Airbnb and other modern-day iterations of the temporary flop to bring their platforms up to compliance with the San Francisco Office of Short Term Rentals (OSTR). And this time, the City was not kidding.

Largely shrugged off at the time, in 2015 the Short-Term Rental Ordinance was enacted (Chapter 41A of the San Francisco Administrative Code). The ordinance legalized short-term rental activity for hosts within San Francisco that are permanent residents of their dwelling unit. The hosts were to obtain a business registration and jump through some administrative hoops, but few did.

When it became clear that the honor system wasn’t working, The Board of Supervisors stepped in August 2016, adding several requirements for hosting platforms that provide booking services. Some key demands:

  • Platforms must verify that any residential unit offered for short-term rental is lawfully registered with OSTR before the platform may provide, or collect a fee for, booking services for that unit. The Guidance attached to this letter details how to comply with this requirement.
  • Platforms must submit a monthly affidavit to OSTR affirming that they have exercised reasonable care to verify that hosts utilizing their service are lawfully registered with OSTR.
  • Platforms must maintain business records for no less than the prior three years for each of their hosts and short-term rental transactions and must provide this information to OSTR upon request.

Airbnb and HomeAway responded with a lawsuit. Fast forward to a settlement in which the hosting platforms agreed to more transparency about its hosts. Of course, there were some kinks, but they got ironed out. On July 31, OSTR sent a friendly but stern letter to short-term rental platforms reminding them of their obligations. The OSTR became more than a potted pot – it meant business.

We uploaded the game-changing letter to our website, but warn it’s not an easy read. With the new rules and regulations impacting short-term rental agreements and the City’s newfound ability to enforce them, it is imperative to consult with an attorney to avoid being banned as a host and incur other liabilities that will be much costlier than a weekend stay.

There’s never a dull moment with Silicon Valley’s most prized unicorn. Airbnb made the national spotlight again, this time for the blatantly racist text message of one of its hosts.

Dyne Suh, a law student from California, tried to book a cabin through Airbnb and minutes after arriving, the host canceled the reservation. “One word says it all. Asian” was the explanation given for the cancellation, which left Suh’s group stranded in a snow storm near Big Bear. Airbnb promptly banned the host and issued a strongly-worded statement condemning the behavior.

For their racial bias, the ex-host will now pay $5,000 and go back to school. They are required to take a college-level Asian American studies course, volunteer at a civil rights organization and participate in a community education panel.

“This is a development in restorative justice, which means that people can make mistakes, people can do bad things, but they’re not irredeemable”

~ Jon Ichinaga, chief counsel of the Department of Fair Employment and Housing

For more background on the story, visit this CNN Article.

While the educational component of the ex-host’s penalty is unprecedented, this is not the first time racial discrimination by Airbnb hosts has been under fire. Watch this video from CBS This Morning which chronicled the endemic problem and Airbnb’s efforts to address the issue head-on in a “zero tolerance” policy.

The most recent story of Dyne Suh’s harrowing experience has some shock value because the offensive statement was so blatant for the world to see, but at Bornstein Law, we must warn Bay Area property owners that 99.9% of housing discrimination lawsuits are due to less obvious forms of discrimination. You do not have to make overt racial slurs in order to be in trouble, folks.

In fact, housing discrimination comes in many unsuspecting, less clear-cut forms. For example, in an earlier post, we explained that landlords and property managers must exercise caution in using criminal background screening when selecting tenants. We’ve also pointed out that service animals are not considered pets and so denying housing to a visually impaired person because they have a service dog, for example, can give rise to a discrimination action.

Under California law, a landlord cannot refuse to rent to a tenant, or engage in any other type of discrimination, on the basis of group characteristics specified by law that are not closely related to the landlord’s business needs. Race and religion are examples of “group characteristics”, but it doesn’t end there. Ancestry, childbirth, sexual orientation, marital status, source of income, disability or medical conditions are some of the many dizzying factors that landlords need to consider.

You do not need an attorney to tell you it’s not ok to send a racist text message to a would-be tenant, but for other nuanced areas, Bornstein Law can help you understand the rules and regulations related to housing discrimination.

More than ever, the law supports strict enforcement of any actions that suggest discriminatory intent with real estate activity, making it imperative for property owners to take notice. Stay tuned for future posts that address these and many other weighty issues affecting Bay Area landlords today, or subscribe to get the latest updates delivered to your inbox.

As pioneers in the ever-evolving laws relating to short term rental agreements, we were intrigued by the new role Danny Glover was cast into. It’s not a sequel to Lethal Weapon, but a major role in the PR campaign of Airbnb. The short term rental Goliath needs some help, for sure.

Airbnb has taken a backlash lately over diversity issues, and it wasn’t so long ago that it percolated to the national news when a host sent a text message to a prospective guest denying access to her rental because she was Asian, a story we chimed in on here.

The actor, film director, and political activist seems to be the perfect figurehead to champion a culture of safety and diversity. Known not only for his world-renowned films and television programs, Danny Glover is also for “progressiveness throughout America and the world knows Mr. Glover as a steadfast advocate for social justice”, according to Janave Ingram, director of partnerships for Airbnb.