Australian couple evicted for listing their rental apartment on Airbnb

It's the worst nightmare of every renter who is making cash on Airbnb: A court in Melbourne, Australia has evicted tenants after their rental property was leased on the property platform. 

In a case that is likely to set a precedent in Australia, a landlord has been given permission to kick her tenants out due to them using her apartment for short-term stays. 

The appeal case was heard in the Victorian Supreme Court on Friday, with the decision being focussed on whether or not the tenants had subletted or licensed the property.

Subletting of an apartment is not allowed in Australia without the permission of the landlord and the only people allowed to live in the property are those listed on the tenancy agreement. 

The couple, Barbara Uecker and Michael Greaves, listed their rental property on Airbnb numerous times after leasing the property from Catherine Swan for one year in August 2015. The case was based on the instances when they rented the entire property out, rather than a single room. 

The entire apartment was listed on Airbnb for $200 per night, with a minimum stay of three nights and a maximum of five nights. It is not clear in the court documents how many guests they had in the apartment during the last year, but it appears they were away or staying with friends when it was rented out. 

"I am of the opinion that the Airbnb Agreement for occupation of the whole of the Apartment is properly to be characterised as a lease between (...) the tenants and the Airbnb guests for the period of occupation agreed between them," Justice Clyde Croft ruled, according to court documents. "The tenants, are in breach of the provisions of their lease of the apartment."

Swan was appealing an earlier decision by the Victorian Civil and Administrative Tribunal. The tribunal had found the Airbnb guests did not have "exclusive" use of the property so it was therefore acceptable under the terms of the lease. On Friday, the judge disagreed with this finding. 

Due to the nature of the case, Justice Clyde Croft made comments in his ruling in reference to the legality of Airbnb in Australia. He said this ruling was in regards to this particular lease and Airbnb arrangement only.

"First, this is not a case on the merits of Airbnb arrangements. Neither is it a case on whether or not Airbnb arrangements might be said to be 'illegal'-- either in some particular or some general, non-legal, sense," he said. 

Swan spoke after the ruling to ABC News saying it is a win for landlords. 

"You've got to give landlords certainty, we can't just be leasing out our properties and not knowing what's going on in them," she said. "It's not really Airbnb ... it's tenants taking advantage of sort of a gap in the system."

If you're a renter, it might be worth lying low on Airbnb for a while. 

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