Rental Arbitrage & Associated Risks

Legal Risks of Rental Arbitrage in Real Estate Investment

Real estate investors are always looking for ways to minimize their up front investment and expedite their collection of cash flow. One of the investing trends that has gained significant attention in recent years is rental arbitrage.

What is Rental Arbitrage?

Rental arbitrage is a real estate investment strategy that involves renting a property, such as an apartment or house, from the legal owner, and then re-leasing the same property on a short-term basis through platforms like Airbnb, Booking.com, or Vrbo. For this strategy to work, the re-leasing price must be higher than the initial lease from the owner to create a profit.

While this form of real estate investment may seem like an easy path to financial success – it has a low barrier to entry and efficiently creates value for both the property owner and the short-term rental guests – it is not without its legal complexities and risks.

The Legal Risks of Rental Arbitrage

Here are some of the key legal challenges you may face when engaging in rental arbitrage:

1. Lease Agreement Violations: Most standard lease agreements prohibit subleasing without the landlord’s explicit consent. Engaging in rental arbitrage without obtaining this consent can result in a breach of your lease agreement.
2. Zoning and Local Regulations: Almost all municipalities have zoning laws and regulations that restrict or prohibit short-term rentals in certain areas or property types. Violating these regulations can lead to significant fines and legal action.
3. Short-Term Rental Regulations: Some towns, cities, counties, and states have specific regulations that govern short-term rentals. These regulations may require permits, specific taxes, limit the number of days you can rent a property, or impose safety standards.
4. Taxation: Income generated from short-term rentals is often subject to local, state, and federal taxes. Failure to report and pay these taxes can lead to penalties and legal issues with tax authorities. If unpaid, the taxing authority will often place a tax lien on the property.
5. Property Damage: Guests staying in your rental property will inevitably cause damage, and you may be held legally responsible for the cost of repairs under the initial lease from the owner. Without proper insurance, security deposits, or cash reserves, this can lead to steep and escalating financial losses.
6. Liability: If a guest is injured while staying at your rental property, you could be held liable. Proper legal structures, written policies and waivers, and insurance coverage is crucial to protect yourself from potential legal claims.
7. Neighborhood Disruption: Neighbors may not appreciate the constant turnover of short-term renters and may file noise complaints or other grievances that can lead to legal actions. Further, many neighborhoods have restrictive covenants or other binding agreements and rules which may prohibit rentals or short-term rentals.
8. Landlord Disputes: If your landlord discovers that you are subleasing without permission, they may take legal action against you, potentially leading to eviction or financial penalties.

A Final Risk: Simultaneous Breach of Multiple Agreements

One of the most significant risks inherent in rental arbitrage practice is the potential for simultaneous breaches of multiple agreements. This risk can materialize when rental arbitrage operators are not only in violation of a lease agreement with the property owner, but also violate public local zoning regulations or rental ordinances, or private rental agreements with the guests. When breaching multiple agreements at the same time, the risk of legal action increases substantially.

How to Minimize the Legal Risks of Rental Arbitrage

There are strategies which you can use to mitigate the legal risks associated with this type of investment practice, such as:

1. Review and Negotiate Your Lease Agreement: Carefully examine your lease agreement to determine if subleasing is allowed or if you need to seek the landlord’s permission. If you do not have the right terms which protect you, ask to include those terms.
2. Research Local and Neighborhood Regulations: Understand the zoning and rental regulations in your area. Ensure you are in compliance with all local laws and obtain any necessary permits.
3. Tax Compliance: Keep detailed records of your rental income and expenses, and pay any applicable taxes. Talk to a tax professional to ensure you are meeting your tax obligations.
4. Insurance: Purchase appropriate insurance coverage for your business.
5. Security Deposits: Implement a security deposit policy to cover potential property damage. Ensure it complies with local laws and clearly outline all terms in your written rental agreements.
6. Noise and Behavior Policies: Set clear rules and expectations for guests regarding noise, behavior, and respect for neighbors. Enforce these policies to maintain good relations with the community.
7. Professional Property Management: Consider hiring a professional property management company that specializes in short-term rentals in your area.
8. Dispute Resolution: Establish a process for handling disputes and emergencies with guests or neighbors to avoid issue escalation whenever possible.

The Importance of Transparency

Transparency is key to maintaining a positive reputation and reducing legal risks in all real estate investing, but especially rental arbitrage. Here are some steps to consider:

• Honesty with Landlords: If your lease agreement prohibits subleasing, consider renegotiating your lease with the landlord to gain permission. You may consider offering a copy of your policies, pricing, and business and enforcement plans.
• Clear Guest Communication: Be upfront with guests about your property’s rules, expectations, and any potential issues they may encounter.
• Community Engagement: Engage with your local community and neighbors.

Changes in Rental Arbitrage Regulation

The practice of rental arbitrage is constantly evolving. As more local governments and communities grapple with the impact of short-term rentals on housing availability and neighborhood character, regulations are likely to change. Stay informed through our newsletter and other investor-specific news sources.

How We Can Help – Experienced Rental Arbitrage Attorneys

If you are a rental arbitrage investor and don’t have a knowledgeable attorney with direct experience in rental arbitrage, now is the time to contact Avenue Legal Group. We work with investors of all sizes and types to create legal entities to operate their arbitrage and investment portfolios, create or update the legal documents that are appropriate for their businesses, and provide counsel on minimizing and eliminating legal risks in their business structures.

Looking for a rental arbitrage lawyer in Oklahoma? If you need counsel in a dispute, municipal or town proceeding, court case, or other form of litigation involving rental arbitrage, contact us anytime. Our full-service firm offers litigation representation and dispute resolution support in addition to our drafting, planning, business formation, and preventative services.