from the interesting-legal-theories dept
We’ve reported a bunch of times on the various legal fights that Airbnb has had to go through lately. Just a few weeks ago, NY’s Attorney General Eric Schneiderman (who has admitted in the past that his interest in Airbnb is really about protecting NYC’s big hotels), said that he believed most Airbnb listings in NY to be illegal. Under his standards, every Airbnb I’ve stayed at in NYC would almost certainly be illegal, despite the fact that I have had nothing but fantastic experiences with Airbnb in NYC (much better than my experiences with hotels). San Francisco seemed to be going in a different direction, however, with the city passing a new law just last week that effectively legalized many Airbnb rentals. This law was actually fought by so-called “housing interests” in San Francisco (who seem to have some trouble understanding basic economics).
So you might assume that any legal challenge to the law would come from those “housing interests.” Instead, however, it’s Airbnb’s biggest competitor, HomeAway, perhaps best known for its VRBO site (unofficial motto: “we were Airbnb before Airbnb, dammit”). HomeAway is arguing that the various restrictions that San Francisco put in this new law to appease those “housing interests” are actually unconstitutional in that it unfairly enables Airbnb’s particular business model, while limiting HomeAway’s. The key issue: many of the people who use HomeAway use it to rent out second homes, while the new law targets short-term rentals of primary residences only.
How could that possibly be illegal? Well, that’s where you have to dive into the convoluted legal argument of HomeAway, which argues that this new law violates the Commerce Clause of the Constitution by “discriminating against interstate commerce” because there’s “differential treatment” between SF-based residents and non-California residents.
The Ordinance violates the Commerce Clause because it discriminates against interstate commerce through differential treatment of San Francisco-based and non-San Francisco-based interests that benefits the former and burdens the latter. This unconstitutional discrimination takes two forms. First, by its express terms, the Ordinance allows only permanent San Francisco residents to rent out on a short-term basis (which the Ordinance defines as thirty days or less) residential property they own or lease in San Francisco. Non-permanent residents of San Francisco who own or lease property in San Francisco are barred on the face of the Ordinance from renting out their property on a short-term basis. Second, the Ordinance requires entities that provide ?Hosting Platforms,? on which owners and lessees of property may advertise their property for short-term rentals, to conform their business operations in San Francisco to one particular model, and no other, under pain of monetary penalties. This anti-competitive measure forces those seeking to rent property to turn over control of selecting short-term tenants to entities that operate the type of Hosting Platform model sanctioned by the Ordinance and to pay whatever fees those entities might charge today or in the future. While facially neutral, the Ordinance?s Hosting Platform rules have the purpose and effect of discriminating against non-San Francisco-based interests.
This seems like a massive longshot.
Admittedly, many of the restrictions in the law do seem silly and pointless. It seems reasonable to let people rent out their homes for short-term rentals whether or not it’s their primary residence. But to sue the city of the law? And, it seems worth noting that it’s not clear that anyone was seriously enforcing the existing law (which is why Airbnb has been so successful), and even with this law in place, it’s not clear that anyone would be enforcing it against VRBO owners. Still, it’s interesting to see the kinds of legal fights these new kinds of services are facing from all angles these days. It’s hard to innovate without a legal team, apparently.