It is a regrettable coincidence that we released an Anarchitecture Podcast episode lightheartedly mocking certain “fears” about short-term rentals just hours before a shooting at an Airbnb unit in Orinda, California took the lives of five people on October 31, 2019. Our hearts are heavy for the families of Tiyon Farley, Omar Taylor, Ramon Hill Jr., Javin County, Oshiana Tompkins, and others who were injured. 

However, some of the arguments we made in our episode can help to shed light on what was done wrong, by whom, and some possible approaches to reducing these kinds of risks in the future. In our Halloween episode #27 of Anarchitecture Podcast, titled “#ana027: 11 Spooky Fears About Short-Term Rentals – ASSUAGED!!!” I talked about my experience as an Airbnb host, and we addressed a list of concerns about short-term home rentals that have motivated bans and other legal restrictions on short-term rentals across the country. These “fears” ranged from effects on housing affordability to fire safety concerns to licensure requirements to noise and other nuisances. We concluded that there are generally building code and licensure requirements that place some reasonable limits on the number of occupants in a single-family home rental, and proposed a “home rental mediation” service to mediate nuisance complaints between hosts and neighbors.

Let’s start with some facts of the case as they have been reported:

  • Michael Wang purchased the 4-bed, 3,972 SF property at 114 Lucille Way in Orinda, California two years ago and advertised it on Airbnb.
  • His listing specifically banned parties.
  • USA Today reported that the home “had a maximum occupancy permit of 13 people.”
  • Neighbors had complained previously about parties, and the city had sent two “notices of violation,” one for exceeding the maximum occupancy and one for parking.
  • Wang reported that the woman booking the listing claimed she was holding a family reunion of 12 people after they had been “going through issues.”
  • An “Airbnb Mansion Party” was advertised on Instagram for Halloween night (10/31/2019) at the home.
  • More than 100 people attended the party.
  • Wang said he got calls from neighbors about the party and called police after seeing the number of people on a security camera (apparently before shots were fired).
  • Wang stated “We called the police. They were on the way to go there to stop them, but before we got there, the neighbor already sent us a message saying there was a shooting,” he told The Chronicle in a phone interview. “When we arrived there, the police were already there.”
  • Shots were fired around 10:50 PM. Information about the shooter or shooters has not yet been reported.
  • Five people have been reported dead. Others were injured in the event and its aftermath.

What mistakes were made leading up to this tragic event, and who should be held accountable?

The Shooter(s)

The shooter or shooters bear full responsibility for the lives they took and chaos and fear they caused. The only conceivable defense they may have is if they were themselves being threatened, but it is difficult to imagine a situation in which their violent action in a crowded space could possibly be considered a legitimate and proportionate response.

Our philosophy of libertarianism is founded on the “non-aggression principle” which states that it is wrong for someone to initiate physical force against someone else without their consent. This type of shooting is the most base violation of this principle. It justifies severe penalties (including retributive force, if necessary) for the shooters that should seek to remunerate the victims and their families to the greatest extent possible.

The Renter and the Guests

The woman who rented the unit does not bear responsibility for the shooting. Hosting a party of 100 people, even strangers, does not make her responsible for the actions or risks of her guests (unless she made some claim about providing for their security). Each guest assumed the risk of participating in a large gathering in a single-family home. While there are increased risks in such an event, as recognized by “assembly use” provisions in building codes, the guests and host could reasonably have assumed that the risk of a shooting was extremely low (although reports of other shootings at short-term rentals are now being publicized). 

However, the woman intentionally defrauded the homeowner (assuming that Wang’s reported statements about her booking are true). She made it difficult for him to exercise his property rights to enforce his rules and limit the number of guests. Those guests were trespassers on his property whether they knew it or not, and the renter bears responsibility for enabling this trespass.

Both the renter and the guests bear responsibility for creating a nuisance in the neighborhood before the shooting. 

This event will undoubtedly cause losses for the homeowner, in the form of legal and other expenses related to this, damage to the property, lost future Airbnb revenue (Airbnb has removed his listing), and possibly lost value of his property. The renter’s act of fraud makes her responsible for a hefty portion of these losses. 

The Homeowner

On first read, it would appear that the homeowner, Michael Wang, did everything right in regards to this booking. His rules said no parties. He accepted 12 related guests when the house apparently had an occupancy permit for 13. He had a security camera to check on the number of guests. He called the police when it became apparent to him that the rental unit was not being used as agreed in the booking, and was being disruptive to neighbors.

Like the renter, the homeowner does not bear responsibility for the shooting. However, he is not without fault for creating a nuisance in his neighborhood. 

As discussed in our episode, there may be existing limitations on the use of his property:

  • NFPA 101 Life Safety Code defines a one-family dwelling unit as being occupied by a family plus up to three outsiders. NFPA does not define family, but local land use ordinances often define it as a “single-housekeeping unit,” meaning that it is a group of people living together, eating meals together, and looking out for each other’s well-being. This does not necessarily mean relation by blood or marriage. Facilities renting to more than a “Family plus three outsiders” may need to seek a change of use permit as a Lodging House, and add sprinklers, commercial fire alarms, protected stairways, etc. (We don’t know if this code applies in Orinda CA, but similar definitions are used in other building codes.) This does not limit occupancy to a specific number, but by advertising the listing for up to 13 people, the host was inviting violations of this code requirement. Such violations may invalidate his insurance coverage and subject him to criminal penalties for building code violations. The renter’s reported claim that the rental was for a “family reunion” of 12 people would probably be compliant with this “family” definition, but most gatherings of 12 people would not be.
  • We discussed Maine state licensing requirements for lodging places that appear to require licensure for short-term rental units renting four or more bedrooms. If this four-bedroom house had been in Maine, we think it may have required a state license as a lodging place. I am not familiar with California’s lodging licensure requirements, but there may be some similar limit on the number of rooms or occupants that can be lodged without a state license. 
  • It’s possible that the home did have an “occupancy permit” from the city limiting it to 13 occupants, but this type of occupancy limitation would be unusual for single-family homes. Regardless, just because you can rent to 12 people doesn’t mean that you should.

Based on these points, Wang had a responsibility to maintain a limit on the number of occupants. This would have greatly reduced the safety risks of a large gathering, as well as the potential for nuisances for his neighbors. The renter made this difficult for him by (allegedly) defrauding him, but she did not make it impossible or relieve him of this responsibility.

It is also possible that Wang’s statements to the media are not true. Did he really have a conversation with the renter about a family reunion of 12 people? This should be documented in communications on Airbnb. Did he respond to neighbors’ texts and call police before the shooting, or after? Did he call the police at all? This will become apparent from phone records. Did he not look at his security camera to verify the number of occupants before receiving messages from neighbors?

Wang had established a pattern of negligence in regard to this property creating nuisances for his neighbors, as evidenced by previous complaints and violations. It’s possible that he had been making efforts to improve his enforcement, by using a security camera, for example. It’s also possible that he simply remained negligent, allowing his house to be rented for parties with little due diligence while relying on his “no parties” rule and security camera for plausible deniability. Such a judgment remains to be proven, one way or the other.

Regardless, short-term rental hosts, particularly those with large homes allowing a large number of guests, have a responsibility to take extraordinary measures to ensure that their guests will not create nuisances that violate the rights of their neighbors to quiet enjoyment of their own property. Given the history of parties at this location, this host should have known better and taken more proactive and deliberate steps to identify the renters and stop the party before it started. 

The City and the Police

This property had allegedly received multiple previous complaints, establishing a pattern of creating nuisances for neighboring properties. The only actions taken by police were to issue two “notices of violation,” one for exceeding the maximum occupancy and one for parking. Neither of these acknowledged or punished the actual offense, which was the creation of noise-based nuisances for adjacent properties. These enforcement actions did not address the increasing persistence with which these offenses were taking place and were ineffective in preventing them.

Does this suggest that police should have been more diligent, that penalties should have been harsher, or that more laws were needed to define and discourage nuisances?

As discussed in our podcast episode, noise nuisances are very difficult to observe, document, and adjudicate. It is not just a matter of an objective, measurable decibel level. The perception of a nuisance from noise is subjective and depends on the content and context of the alleged offense. Nuisances that are relatively minor may be perceived as increasingly disruptive if they happen every weekend. 

It is difficult to define a nuisance law that police can meaningfully enforce, and neighbors may not want to involve police in relatively minor nuisances. Conversely, they may “cry wolf” and call police for perceived nuisances which are below the threshold police are authorized to enforce. 

Simply put, police power is not an effective and reliable means for mitigating relatively minor but persistent nuisances between neighbors. Increasing police power would risk creating disproportionate police actions and penalties, which could in turn result in arbitrary and possibly prejudicial enforcement. Police can have a role in responding to major episodic disturbances but should not be relied on to mitigate relatively minor yet chronic nuisances. 

We proposed creating a “home rental mediation” service as an anonymous but public sounding board for complaints about problematic properties. This service could publish anonymous complaints, contact home rental hosts about minor or major complaints and facilitate negotiations between neighbors and hosts (while preserving anonymity) to agree on a set of strategies for reducing nuisances on their properties.

Airbnb Inc.

Airbnb Inc. was not responsible for the shooting, the nuisances to neighbors, or the renter’s alleged defrauding of the homeowner. Airbnb is a home listing service that makes it easy for renters to find homes available for rent. This is a service that has been provided for centuries by classified ads, vacation rental agencies, Craigslist, or “For Rent” signs stapled to the sides of buildings. Airbnb’s technology has made this easier for both renters and hosts, which in turn has made it more viable for many people to operate short-term rentals. 

If someone listed a home for rent on a classified ad in a newspaper, no one would hold that newspaper responsible for anything that happened in that home as a result of the rental. The rental agreement is a private agreement between the homeowner and renter.

This is essentially true of Airbnb as well, although the agreement is made through certain terms of service defined by Airbnb. The renter and host each have certain obligations to Airbnb as users of the platform, and to each other (such as respecting house rules), but to our knowledge Airbnb does not provide any guarantees about listings or renters’ reputations. 

However, Airbnb’s hands-off approach to monitoring party houses on its platform seems to be an increasingly dumb business decision. While such an extreme event as this shooting could scarcely have been anticipated, it was only a matter of time before a large gathering at an Airbnb unit resulted in a problematic or even dangerous situation. 

Beyond the risks for occupants in these units, party houses create nuisances in neighborhoods. The vast majority of short-term rental properties are hosted and rented responsibly, yet every town has a small number of party houses, which become the only visible sign of short-term rentals in those towns. This has led to many cities and towns instituting bans, licenses, permits, and other restrictive requirements on short-term rentals, infringing the longstanding property rights of homeowners to rent out their homes (as long as they are not disturbing others). Airbnb just spent $4.2 million in a losing battle against these types of restrictions in Jersey City. 

Airbnb Inc. has allowed its platform to create this environment in which fears about party houses dominate discussions about short-term rentals. Allowing party houses does not benefit Airbnb, since they represent a small number of listings that could be rented just as easily to non-partiers, and it actively hurts responsible hosts who bear the sole responsibility of vetting potential partiers and are put in the position of defending Airbnb from its critics in their towns. With Airbnb’s platitudes about creating a community of trust, it is perplexing that they have let this Achilles heel of party houses persist for so long on their platform. 

In response to the shooting, Airbnb Inc. plans to start taking measures to verify all of its 7 million listings and to remove party houses from its platform. This may address another problem that was reported by Vice (on the same day we released our podcast episode) of a scam in which a host switches a renter’s accommodations at the last minute. Airbnb has had a lackluster online neighbor complaint service in place, but is now starting a 24/7 Neighbor Hotline and consulting with law enforcement authorities on how to provide rapid responses to events. 

These are promising developments. Hopefully they are not too little too late, as there are still many places that are grappling with how to address short-term rentals. The 24/7 Neighbor Hotline reflects the intent of our proposed “home rental mediation” service, although to foster trust among neighbors it may need to allow for mediation of minor perceived nuisances, not just react to major nuisances in the way police already do (to the extent that they do).

Bans on short-term rentals infringe the longstanding property rights of homeowners to rent their homes to others. Other types of restrictions like licensure and permits do nothing to mitigate the fundamental problem, which is nuisances created by a small number of properties. Any regulations to address nuisances should seek only to better define existing property rights, i.e. what does or does not constitute a nuisance, and how frequent yet minor nuisances should be considered. 

But the best solution for resolving disputes between neighbors may be to create an open dialogue between them in which the property rights of both parties can be acknowledged and strategies for mitigating nuisances can be agreed upon. A reliance on government regulations bypasses this type of interpersonal engagement, fostering mistrust and resentment rather than communication and compromise. 


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