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Should Airbnb Be Held Liable for a Host’s Actions?

Posted by Stacey L. Pietrowicz

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Stacey brings meticulous attention to detail to every type of case, with consistently outstanding results. Although the youngest partner at SUGARMAN, Stacey routinely handles some of the firm's most sophisticated cases and has been recognized in Massachusetts Super Lawyers every year since 2013. Meet Stacey

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Airbnb is an online marketplace for home sharing and allows property owners and tenants to rent out their properties on a short-term basis. Whether “an apartment for a night, a castle for a week or a villa for a month,” people can find room and boarding accommodations in over 191 countries and 65,000 cities worldwide. With the rapid growth of the industry however, comes a rapid growth of legal issues, including protecting guests from injuries.

Airbnb Properties Do Not Afford the Same Protections as Hotels

While hotels have a recognized legal duty to protect their guests from foreseeable risks, including hazardous conditions and acts of third parties or other guests, Airbnb hosts generally do not have the same responsibilities. Airbnb hosts are not required to have a full-time maintenance crew, security system, or undergo building safety inspections before renting out the property. Hosts do not have to have a license to conduct business or register with any agencies. Airbnb provides hosts with a list of “recommended responsibilities” to keep in mind when hosting, including to list emergency procedures, disclose any security cameras or other surveillance equipment at the property, establish occupancy limits, and to identify, remove or lock any objects or areas that may be dangerous to a guest. There is no enforcement of these recommendations, however, and guest safety is at the mercy of the host.

Victim of Alleged Sexual Assault by Airbnb Host May Have Little Recourse

Just recently, on July 27, 2017, Leslie Lapayowker, a guest, sued Airbnb alleging that the host she rented a studio from, Carlos Del Olmo, sexually assaulted her while she was at the property. Ms. Lapayowker sued Airbnb for negligence in failing to properly screen Del Olmo. Had it properly run a background check, as required by its policy, Airbnb would have discovered that Del Olmo had been arrested and charged for battery in 2013.

Airbnb claims that it did comply with the company’s mandatory yearly screening checks of its hosts, but since Del Olmo was never convicted, he was allowed to list as a host. Airbnb also stated that its background checks are meant to only identify people on the terrorist watch list, those convicted of felonies and “significant misdemeanors,” and registered sex offenders. The background checks are also limited to only the state in the U.S. where the host resides, and Airbnb’s website states that “background checks don’t always identify a person’s past crimes or other red flags.” After receiving Lapayowker’s complaint, Airbnb removed Del Olmo from their site.

While Ms. Lapayowker does have a pending lawsuit against Airbnb, it is unknown whether Airbnb’s insurance policy will provide coverage. Airbnb’s Host Protection Insurance provides primary liability coverage for up to “$1 million per incident in the event of third-party claims of bodily injury” but does not cover “intentional acts including assault and battery, sexual abuse or molestation by the host or any other insured party,” which may leave Ms. Lapayowker without much in the way of recourse.   

New Law Would Protect Both Guests and Hosts

Many states including Massachusetts are working on legislation to address these issues. In 2015, House Bill No. 2618, was introduced in the House of Representatives, which would create a licensing system for home-sharing hosts like those using Airbnb. The bill would require hosts to be licensed in their city or town and to register the home as a rental property. It would also require hosts to comply with “any outstanding building, electrical, plumbing, mechanical, fire, health, housing, police or planning code enforcement” and to carry at least $500,000 in liability insurance coverage for guests. The bill would require insurance companies to defend the host from claims of bodily injury or property damage incurred during a short-term residential use. The bill, which appears to be stalled at the moment, would eliminate the insurance gap and protect hosts and guests from personal liability.

SUGARMAN has extensive experience litigating premises liability claims on behalf of those who have been injured. If you have been injured as a result of negligence at a rental property, and wish to speak to one of our attorneys regarding liability, please fill out a Contact Form, call us at 617-542-1000 or e-mail info@sugarman.com.