Airbnb test case headed for Victorian Supreme Court as landlord seeks to evict short stay host

IF YOU rent an apartment out on Airbnb, do you need your landlord’s permission? That crucial question is set to be tested in a landmark court case.

This short stay rental on St Kilda’s ‘Paris end’ is the subject of a landmark legal battle.

A TEST case on the legality of Airbnb could soon be heard in the Victorian Supreme Court.

The landlord of a Melbourne apartment listed on the accommodation sharing site is set to appeal a VCAT decision allowing tenants Barbara Uecker and Michael Greaves to continue offering their home to paying guests, the Herald Sun reports.

Last month, the pair won their case at the Victorian Civil and Administrative Tribunal, where tribunal member Kylea Campana found that they were licensing the two-bedroom St Kilda flat, not subletting it.

The landmark decision could have implications for landlords and councils around Australia, which have been trying to clamp down on Airbnb rentals.

The property is listed for $160 a night.

Ms Uecker, a former ABC children’s television executive, and Mr Greaves currently have their “Art Deco Treetop Escape” in the “Paris end” of Fitzroy St listed on the short-stay site for $160 a night.

In her Airbnb profile, Ms Uecker promises to “take care of my guests as if they were family.”

“If you’ve never been to St Kilda before, prepare to be delighted. Many people think of this ‘city and seaside’ neighbourhood as the best of Melbourne’s many suburbs,” the property listing reads.

“Boasting fresh breezes from the bay and an overabundance of unique boutiques, restaurants and colourful strolls, this area appeals to fitness fanatics and foodies alike. While slightly removed from the hustle bustle of Melbourne’s CBD, it’s nevertheless an easy 20 minute tram ride to get there ... My neighbourhood, called ‘The Paris End’ is especially full of exciting, hip cafes and bars with a distinctly French flair and there’s no better place to sample a variety of brioches, croissants and other continental delights.“

Guests will be treated ‘like family’.

But landlord Catherine Swan was none too pleased when she found the property listing, and launched eviction proceedings at VCAT, alleging a breach of the Residential Tenancies Act by subletting without permission.

The tribunal rejected this and found that there was no sublease from the tenants to their guests.

“Airbnb is to the residential tenancy market what Uber is to the taxi industry — unregulated and controversial,” Ms Campana said in her March 24 decision.

“I find that the Airbnb guests did not have exclusion possession of the rented premises ... Without an entitlement to exclusive possession, I am satisfied that the nature of the legal relationship between the tenants and Airbnb guests was not a tenancy. In my view, this was not a lease but a licence to occupy.”

According to the Herald Sun, Ms Swan has lodged an application for leave to appeal to the Supreme Court of Victoria.