Optimism but Vigilance Required in Vacation Rental Hosting During a Pandemic

By: Kyle M. Morgan & Brent V. Trapana

The travel industry was one of the hardest hit industries adversely impacted by the Covid-19 pandemic. Despite the struggles the industry has faced as a whole, U.S. home rental company Airbnb recently decided to go public. The company’s shares skyrocketed on their first day of trading, opening at $146 per share, 115% above its initial public offering price of $68. Airbnb is now valued at more than $86 billion. Airbnb’s successful first day of trading shows the strength of the short-term rental housing market.

As the vacation rental sector grows so do the number of vacation hosts that attempt to capitalize on this hot industry. In Florida, that especially holds true, and Florida vacation hosts could see even more growth despite the lingering Covid-19 pandemic. As winter approaches, people will attempt to escape the cold weather and densely populated cities for warmer weather and holiday home rentals in an effort to feel safer and practice social distancing.

With travelers likely choosing vacation rental platforms as their primary choice for lodging during the pandemic, it is important for vacation rental hosts to understand the legal ramifications operating a vacation rental business. This blog is intended to provide a brief insight into some of the common questions vacation rental host have, such as: What if my guests’ stay ends but they won’t leave?  How do I legally remove my guests from the property?  What specific terms are important to include in my rental agreement to ensure removal of my guests?  What is my ability to seek damages from a guest?

Transient vs. Nontransient Occupancy

Like traditional hotels, vacation rental establishments are a type of transient public lodging establishment defined by Florida Statues Section 509.242(1)(c). Accordingly, guests who occupy vacation rentals are deemed transient occupants under Florida law, meaning their residency in the property is (1) intended for residential use only for a brief period of time, (2) not pursuant to a residential lease, and (3) only intended as temporary in nature. Chapter 509 of Florida’s Statutes is comprised of law that is specifically devoted to public lodging and transient occupancy. It is critically important that all Airbnb hosts familiarize themselves with Chapter 509 so they understand their rights and obligations under Florida law.

Furthermore, it is important for vacation rental hosts to understand and distinguish transient occupancy from nontransient occupancy. Unlike transient occupancy, nontransient occupancy occurs where there is an intent that the occupancy will not be temporary. Under a nontransient occupancy, there is a presumption that the dwelling unit is the occupant’s only residence, and the nontransient establishment is either rented or leased to the guest by a landlord. Nontransient occupants, or tenants, are not bound by Chapter 509, but are instead bound by the Florida Residential Landlord and Tenant Act (“FRLTA”), found in Chapter 83, Florida Statues.

When preparing a vacation rental agreement, it is important for vacation rental hosts to understand the guest is not bound by the FRLTA but instead is subject to Chapter 509. Because the parties’ intent governs the nature of the relationship, any agreement for the rental of a vacation property needs to specify that the occupant is a transient occupant and the agreement is governed by Chapter 509, Florida Statues. This distinction is important as it could avoid any confusion in subsequent litigation.

Removal of a Guest

As different sections of Florida law correspond to each type of occupancy, there are different ways Florida law deals with each scenario. For example, a landlord who wants a tenant removed from a residential home would sue the tenant for eviction under Chapter 83. However, a vacation rental host does not need to commence a formal eviction proceeding as the FRLTA does not come into consideration. Instead, Chapter 509 applies to the removal of transient occupant (i.e. a vacation rental guest). To remove a guest, a vacation rental host must first provide notice to the transient occupant that it no longer wishes to entertain the occupant as its guest. An example of proper notice a host must provide the guest is found in Florida Statutes Section 509.141. If after receiving proper notice the occupant refuses to leave the premises, the vacation rental host may call any Florida law enforcement officer, who is required to remove the occupant. Specifically, Florida Statutes Section 509.141(3) requires the officer to “place under arrest and take into custody …any [transient occupant] who violates [§509.141(3), Fla. Stat.] in the presence of the officer….” Once placed under arrest, the transient occupant “will be deemed to have given up any right to occupancy or to have abandoned such right of occupancy of the premises, and the operator of the establishment may then make such premises available to other guests.” See §509.141(4).

The statute also provides a number of reasons the vacation rental host can remove the transient occupant, which include (1) the occupant possessing a controlled substance, (2) the occupant being intoxicated, profane, lewd; (3) brawling or indulging in language or conduct that disturbs the peace and comfort of other guests; and (4) the occupant failing to pay, failing to check out timely, or being considered a person the continued entertainment of whom would be detrimental to such establishment. Accordingly, a vacation rental host enjoys a much faster and easier removal process than a traditional landlord under Florida law.

Damages

Any vacation rental agreement should have a provision that specifically addresses what happens when a guest stays longer than the express terms of the agreement allow, i.e., a holdover provision. The holdover provision should specifically delineate the amount of damages the guest will pay if he or she refuses to leave the property or otherwise materially breaches the agreement. Additionally, your rental agreement should spell out what happens if a guest’s stay is cut short by the guest’s own decision (i.e. a cancellation policy) or due to circumstances beyond the control of the host or guest (i.e. loss of power, pandemic, or natural disaster).

Conclusion

If you are a vacation rental host in Florida and find yourself faced with a guest whose stay has ended but won’t leave, or are a host and think you may be entitled to damages from your guest, or are in need of assistance in drafting a vacation rental agreement for your guests, please do not hesitate to contact us.

Kyle M. Morgan is an attorney at the full-service South Florida law firm of Brinkley Morgan, where he focuses his practice in the areas of marital and family law, corporate law and business development. He also handles a wide variety of business litigation matters, including business torts, corporate disputes, real property disputes, and issues involving short-term rentals and vacation rental properties.