The law, if you read it, pretty clearly does NOT apply to AirBnB (except possibly people who rent a large number of flats on it). From 803(b):
(b)Nothing in section 804 of this title (other than subsection (c)) shall apply to--(1) any single-family house sold or rented by an owner:...
(It's a long section, I've snipped most of it. Section 804 is what you quoted.)
(2)rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.
So if I'm renting out my home on AirBnB, or even a full floor of a 4 family brownstone, none of this actually applies to me.
> The law, if you read it, pretty clearly does NOT apply to AirBnB
It pretty clearly applies to lots of uses of AirBnB, even if arguably not all. But I think there's a pretty good case that it applies to AirBnB use without exception, simply because using AirBnB seems to make it applicable, as discussed below.
> Nothing in section 804 of this title (other than subsection (c)) shall apply to--(1) any single-family house sold or rented by an owner:...
(Note that lots of AirBnB rentals of single-family homes are not by the owner, and thus not within this exception even before considering the limitations on the exception.)
> (It's a long section, I've snipped most of it. [...])
And you shouldn't have, because the part that you snipped is all limitations on the part of the you quoted, including the most important one: "Provided further, That after December 31, 1969, the sale or rental of any such single-family house shall be excepted from the application of this subchapter only if such house is sold or rented (A) without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person and (B) without the publication, posting or mailing, after notice, of any advertisement or written notice in violation of section 804(c) of this title; [...]"
The use of a service like AirBnB would seem to place a rental act squarely within this limitation, and thus outside of the exception.
(b)Nothing in section 804 of this title (other than subsection (c)) shall apply to--
(1)[...everything you quoted...], or
(2)rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.
Since (2) applies to AirBnB, it doesn't matter if (1) does because the exception is (1) || (2).
Apparently people also have a constitutional right to choose "intimate associations", which includes who you live with. However, you can't advertise that you'll do this.
I'm pretty sure I'm not, at least in the way you are suggesting.
> Since (2) applies to AirBnB
(As noted previously, neither 1 nor 2 applies to many uses of AirBnB, where the person offering the rental isn't the property owner but is instead a tenant; but, that aside...)
I was actually responding to your suggestion that (1) applied to AirBnB -- or, more precisely, to a homeowner renting their home out via AirBnB; I was not responding to your argument that (2) applies to a AirBnB -- or, more precisely, to rentals of units or rooms by owners of homes for multiple (but not more than four) families living independently while the owner occupies some part of it (which, again, doesn't apply to lots of AirBnB rentals, including by-owner rentals.)
There are, I will acknowledge, a subset of AirBnB transactions which would fall within the exception of (2) from federal fair housing laws (which doesn't, actually, mean they'd be legal everywhere in the US; many states have much substantially narrower exceptions to state fair housing rules than exist in federal fair housing law.)
> Volokh (a very good law blog)
Volokh is probably the best right-libertarian law blog there is, yes.
> has blogged on this topic a while back
Maybe, but neither of the links you provide are "on this topic", (to wit, the legality of discriminatory renting via a commercial intermediary like AirBnB.) Both are regarding discriminatory listings via hands-off listing venues, which is a very different issue.
I'm deeply confused as to how you misinterpreted my comment so much. I was explicitly referring to (2) which is why I quoted that in full. That's also why I explicitly said "So if I'm renting out my home on AirBnB, or even a full floor of a 4 family brownstone...".
Maybe, but neither of the links you provide are "on this topic", (to wit, the legality of discriminatory renting via a commercial intermediary like AirBnB.) Both are regarding discriminatory listings via hands-off listing venues, which is a very different issue.
The point is the referenced constitutional right to "intimate associations", and you have not established that the use of AirBnB somehow nullifies this constitutional right.
> I'm deeply confused as to how you misinterpreted my comment so much. I was explicitly referring to (2) which is why I quoted that in full. That's also why I explicitly said "So if I'm renting out my home on AirBnB,
If you are renting your home (and not merely some portion of it), you aren't occupying at the time you are renting rooms or units in it, so (2) doesn't apply; (1) might, were it not for the limitations in (1). There would be no point in quoting (1) at all unless you intended to invoke it, and your hypothetical doesn't make sense unless you intended to invoke both the portion of (1) you quoted and (2).
> The point is the referenced constitutional right to "intimate associations",
The existence of that right is not what is in controversy here; whether it extends to the use of an actively-involved commercial intermediary like AirBnB, is. Volokh's posts that you referenced are not germane to the point actually in controversy.
> and you have not established that the use of AirBnB somehow nullifies this constitutional right.
And you haven't established that it extends to the situation at issue; that's the point in controversy. But what either of us has or has not established is irrelevant to the point that the Volokh Conspiracy posts you referenced aren't even relevant to the point in controversy.
Lock an "owner's closet" and have intention to return to the building as your permanent residence, and I believe you meet all needed aspects of 2 to have it apply.
Certainly if I rented part of a duplex where I lived in the other half, #2 applies. #2 continues to apply even while I'm at work, if I go out to dinner, or go on vacation.
Fortunately we have these things called "courts" that are able to apply reason and nuance in combination with logic, with human beings called 'judges' that are able to comprehend a difference between someone who went out to dinner and someone who locked a broom closet to try and falsely claim residence at a property.
You're not the first person who has tried to falsely claim residence at a property, it's a very common way to commit tax fraud by claiming homestead exemptions. The courts won't even entertain this sham for a single second.
Yup, temporary absences like vacations are perfectly allowable. You just can't say that you reside on a property because you locked up a broom closet, even though you never live there.
>The use of a service like AirBnB would seem to place a rental act squarely within this limitation, and thus outside of the exception.
I don't think it would be. The extra verbiage about a "broker/agent" is more of a secondary definition to help the law pin down properties that are "commercial". In other words, if you're paying the high price of contracting a broker, you're 99.99% likely not to be renting out a personal bedroom.
The homeowner's use of Airbnb is more analogous to listing in the "newspaper classifieds" rather than contracting a human broker.
As far as I can tell, very few people including states' general attorneys or Federal courts interpret Airbnb's situation as a broker service that is therefore subject to those limitations.
> The extra verbiage about a "broker/agent" is more of a secondary definition
No, its not. Its an express limitation on the applicability of the homeowner exception, and applies to any use of any rental (or sale) services of a broker, agent, or person in the business of renting (or selling) real estate in support of a discriminatory rental, after December 31, 1969.
Its only legal (since 1970) under the federal fair housing act to discriminate, even as a homeowner renting their own home, if the rental is arranged without the use of some commercial rental-arrangement service.
(And even them it may be illegal under state fair housing laws.)
> The homeowner's use of Airbnb is more analogous to listing in the "newspaper classifieds" rather than contracting a human broker.
That's certainly the argument a discriminating owner using AirBnB (or possible AirBnB themselves) would try to make, but AirBnB's financial and substantive involvement in the transaction is very different than that of a hands-off listing service like a newspaper classified section, so I don't think that argument would fly. If AirBnB actually acted like a newspaper classified service, that argument might be valid, but that's not what AirBnB does (if we were talking, instead, about Craigslist, that would be a good argument.)
Where "large" means "more than one". And not always that. If they own two, live in one but lease the other they're not allowed to discriminate on protected characteristics.
I believe if the two units are attached to either other (such as in a duplex or triple-decker), then they are allowed to discriminate on any basis they choose.
(b)Nothing in section 804 of this title (other than subsection (c)) shall apply to--(1) any single-family house sold or rented by an owner:...
(It's a long section, I've snipped most of it. Section 804 is what you quoted.)
(2)rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.
So if I'm renting out my home on AirBnB, or even a full floor of a 4 family brownstone, none of this actually applies to me.