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Landlord-Tenant—Airbnb Occupant Overstayed Reservation—Went from Being Illegal Subtenant to Trespasser After He Surrendered the Apartment—Court Enjoined Occupant from Using the Premises

New York Law Journal

This decision involved a rent stabilized apartment which had a legal rent of $2,765 per month. The tenant violated the lease by renting the apartment through Airbnb to the defendant occupant (occupant). The occupant apparently “overstayed his booking.” The landlord moved to exclude the occupant from the apartment and to set past use and occupancy.

Although no opposition had been submitted on the motion, the court conducted a conference call. The occupant “represented that he wanted to depart the premises at the end of October and was willing to pay $2,100 a month in past and future use and occupancy through October 31, 2020. On or about October 2, 2020, the occupant represented to the court that he had already vacated the apartment and had checked into a hotel. He stated that he would eventually need to retrieve certain belongings that he had left in the apartment.

Based on the occupant’s representation that he had surrendered the apartment, the landlord “apparently changed the locks.” Thereafter the occupant “changed his mind and returned to the subject surrendered subject apartment because he was having trouble paying for a hotel.”

The court stated that “even if (occupant) had not already been a trespasser upon overstaying his booking through Airbnb (and also having no written sublease), he certainly transitioned from being, at best, an illegal subtenant to a trespasser once he surrendered the subject apartment, a representation he made to the court.”

Accordingly, the court granted the plaintiff’s motion and the occupant was preliminary enjoined for using and occupying the premises. The court further held that the plaintiff is permitted to change the locks to prevent continued illegal occupancy.

Comment: Adam Leitman Bailey, attorney for the plaintiff, stated that the tenant had illegally “Airbnb’d his apartment to someone believed to be dealing drugs from the apartment with no intent to ever leave.” As the tenant had returned from Spain, there was no pressure to apply to him and “any kind of normal eviction proceeding would have taken most of a year under the current slog through the court systems under pandemic shutdowns.” Therefore, since “the entire arrangement was illegal from the start,” Bailey went to Supreme Court to obtain an injunction against the illegal activity, “which would have the effect of evicting the illegal subtenant without going through a marshal or sheriff to perform an actual eviction.” He noted that the court understood that the landlord was seeking to “get around the governor’s lockdown on all evictions.” However, the court understood that the occupant “was not only a criminal, but was lying to the court and therefore the court issued the injunction and the tenant packed up his bags.

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