06/16/2023
Long-term Airbnb guests aren’t covered under Ontario tenant law, Landlord and Tenant Board rules
The ruling “creates this no man’s land that is unregulated,” says Fairbnb advocate.
May Warren
By May WarrenHousing Reporter
Thu., June 15, 2023timer4 min. read
updateArticle was updated 18 hrs ago
The Ontario Landlord and Tenant Board (LTB) has ruled that a Swiss family staying as long-term guests in a Toronto Airbnb do not qualify as tenants, in a decision that could have implications for similar arrangements across the province.
“The impact could potentially be huge, because we know that long-term rentals are increasing on Airbnb’s platform,” said Thorben Wieditz, director of advocacy group Fairbnb Canada.
“It creates this no man’s land that is unregulated.”
In a decision released Thursday, board member Peter Nicholson stated that while he is “sympathetic” to the tenants’ situation (he used landlord and tenant throughout for lack of other terms), he found that the “travelling and vacationing public” exemption under Section 5 of Ontario’s Residential Tenancies Act (RTA) applied to the accommodation.
He added that although the same exemption may not apply to other online bookings of a similar length, in this case, among other factors, the reservation was “booked on a platform typically used by the travelling or vacationing public.” He also noted that the tenants arrived from Switzerland for a fixed period of time, and the property was stocked with items such as bedding and towels.
At the heart of the case was whether “mid-to-long-term” stays on sites such as Airbnb qualify as tenancies under the RTA and whether such guests would be entitled to the same rights as other tenants. These types of arrangements are becoming more common in Toronto, with more than an estimated 12,000 such stays listed on Airbnb’s site, according to the city.
The dispute has been closely watched by tenant advocates who say this creates a shadow rental market that leaves tenants vulnerable to landlords, who can cancel reservations without notice. Listings for more than 28 days also fall outside of the city’s short-term rental regulations. Advocates say the ruling could lead more landlords to consider this type of arrangement.
Airbnb spokesperson Matt McNama said in an emailed statement: “The reservation on the platform ended earlier this year. As such, this is a private matter between two individuals.”
The LTB dispute stemmed from the end date of a booking made by Tianning Ning and her family.
Arriving in Toronto so that her husband could be a visiting professor at York University, they reserved a roughly 10-month stay in the upper unit of a spacious home near Yonge and St. Clair streets. The booking was for late summer 2022 until the end of June 2023 through Airbnb for $5,150 a month, before taxes and service fees.
But the end date of the booking was changed to Jan. 31 midway through.
The owner, Suzanne Porter, told the board the “gorgeous, beautiful midtown home” with a large upper unit and a basement apartment was her principal residence and she and her own family had temporarily moved out to take care of her partner’s mother.
Due to an emergency they needed to move back in sooner than anticipated, but Airbnb assured them that was well within their rights and that they would work with the guest to find them new accommodation.
“Basically, all hell broke loose at that point,” Porter testified at the hearing in early May. “It’s been horrendous.”
She and her partner were painted as “money-grubbing landlords,” she said at the hearing. She maintained that the agreement was made under Airbnb’s terms and services.
Following the release of the decision, Porter said she was “relieved.”
“This has been going on for so long and the attack on our character and our reputation has been really difficult to deal with,” she said.
I’m hoping with this ruling from the LTB we can just feel a sense of resolution and have our family back, have our home back, and get our life back.”
She urged other landlords to be very clear about “what it is you’re getting into.” She also acknowledged a “real grey area in the city of Toronto right now that needs to be clarified for everyone” in terms of these types of rentals.
Ning and her family remained in the home until earlier this month, but have since moved into other temporary accommodations. Ning said Thursday they were locked out. Porter said the house appeared vacant so they hired a property firm to deal with it and “took peaceful possession,” and that she had not received any payment since the booking was cancelled in January. Ning said she had offered to pay Porter off platform, but Porter said she believed this would establish a traditional landlord-tenant relationship.
Ning plans to request that the board review the order and appeal to the divisional court.
“I think the scope of the problem clearly goes beyond our case and this decision encourages landlords to continue to migrate from short-term rental to long-term rental,” she said Thursday, referring to Airbnb listings.
In the ruling, Nicholson noted that Ning had asked for a lease but Porter had preferred to stay on Airbnb given her past experience with the platform.
“There must be laws and regulations that state clearly the landlord cannot refuse to sign a lease agreement,” said Ning.
