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What New York’s New Anti-Airbnb Law Misses

Alyssa Katz

September 21, 2023

The short-term rental ban is the latest example of lawmakers reaching for facile solutions to complicated problems

The short-term rental ban is the latest example of lawmakers reaching for facile solutions to complicated problems

Just after Labor Day, Airbnb as the world knows it vanished from New York City, with the launch of a registration system coupled with heavy fines for renting out an apartment for less than 30 days, both mandated by law. Thousands of listings vanished from Airbnb, which dominates short-term rentals, and a scan of listings there and on another rental platform, VRBO, shows legit hotel rooms and the occasional legal room-within-a-host’s-home — mostly.

But look over here and see listings for furnished apartments from a company called Sonder, which offers a legal hotel-style experience via a concierge app that doubles as a room key. 

Look over there and see Facebook posts directing friends and friends-of-friends to websites advertising their Brooklyn home for nightly rental from a couple who spend much of their time upstate. Homeowners like these have been pleading with the City Council for an exemption to the new ban, to no avail.

Facebook Marketplace and Craigslist are now rife with hosts hoping to stay in the short-term rental game. And don’t overlook thousands of apartments refitted into monthly rentals by the room — aimed at single young professionals or the Bushwick nightclubbing digital nomad who can pay $2,500 for a share.

Has the city just kicked off a high-stakes, high-tech game of whack-a-mole?

Property owners will find their way to rent short-term to a mobile, moneyed and transient class that wants the New York neighborhood experience on demand. The deplatforming of short-term rentals from a few dominant websites brings people of means into the informal transient shelter economy where working-class and immigrant New Yorkers have long dwelled. 

The Mayor’s Office of Special Enforcement (OSE), in charge of compliance with the new law, says it is focused on ensuring the booking platforms are only dealing with registered hosts — who are so far a rare specimen, with 329 approved by OSE yet more than ten times as many applications still pending as of mid-September. But has the city just kicked off a high-stakes, high-tech game of whack-a-mole?

New York’s sweeping short-term rental statute achieves certain objectives well enough. It sidelines competition to the ailing hotel industry. Entrepreneurs may think twice before acquiring properties for the illegal purpose of renting them out by the night — making it likelier that an apartment will stay someone’s home.

Meanwhile, the strict new regime treats a homeowner looking to fund occasional travel by renting out their house for a couple of weeks a year no different than an illegal hotel operator with hundreds of rooms. Even in permitted apartments, no more than two guests can stay at a time. And even though the law itself only bars rent-regulated apartments and public housing from registration, pre-existing state law and the city building code prohibit all full-apartment short term rentals, and OSE agents commonly cite those restrictions to fine property owners for violations. 

So while the bill’s sponsor, then-Manhattan Councilmember Ben Kallos, assured nervous hosts, “I don’t think that we’re really focused on going after someone who is going away for a weekend” and assures them “I wouldn’t be worried,” ultimately OSE Commissioner Christian Klossner will decide how to wield his now supercharged power, including fines of up to $5,000 per violation. Klossner cryptically says: “OSE will continue to meet its enforcement responsibilities with a focus on responding to submitted complaints of illegal occupancy.”

The strict new regime treats a homeowner looking to rent out their house for a couple of weeks a year no different than an illegal hotel operator.

The indiscriminate sweep of the law coupled with the sluggish pace of host approvals is already seeding wink-and-nudge avoidance — pushing short-term rental activity out of the open, public-facing arenas the law targets and into a new underground. Like Airbnb in its freewheeling early years, that subculture is destined to go mainstream: Finding a vacation apartment to rent will become little different than scoring a hot restaurant reservation — one of those only-in-New York velvet-rope challenges that give visitors a special story to tell back home and show off their street smarts.

So it goes in this era where code is king and culture too often gets shrugged off by lawmakers who attempt to address big, complex policy challenges, especially those brought on by evolving technologies. Programmatic, tech-administered prohibitions inspire calculated avoidance by the people, who know they can beat the law and the algorithm through application of a little human ingenuity. 

I’ve come to think of such cat-and-mouse play as the gamification of civic management, where lawmakers eager to claim they’ve solved a vexing problem prescribe technological fixes that work better on paper than in practice — because people see the system as both easy and necessary to beat.

The seductions of code make it all too easy to forget about culture. Both need to evolve in a symbiotic relationship in order to have a positive desired effect on human behavior. When the two are out of sync or, worse, at odds, technological attempts at solutions are bound to fail.

In multiple arenas where code is colliding with culture, defiance of technological and technocratic enforcement is having corrosive and widening effects. Technology enraptures advocates and lawmakers with the notion they can systematize enforcement of existing restrictions. But when the underlying rules lack public buy-in in the first place, the digital dragnet feels excessive and code-powered crackdowns paradoxically undermine adherence.

If we had to imagine an ideal civic culture to shrink the industrial scale of short-term rentals, it would be an alignment between providers, customers, bureaucrats and neighbors all mutually invested in ensuring everyone follows basic agreed-upon rules of the road to avoid abuses that cause clear social harms, such as the full-time conversion of apartments into quasi hotel rooms. 

Widespread defiance even in these early weeks suggests a dismal, darker dynamic is already taking hold, where few are invested in making the registration system work and everyone else shrugs.

The indiscriminate sweep of the law is pushing short-term rental activity out of open, public-facing arenas and into a new underground.

Speaking of rules of the road: You’d have to be asleep at the wheel not to notice the proliferation of phony paper or defaced license plates on motor vehicles, and, increasingly, how many cars now zip by without any plates at all — tracking the expansion of speed and red light camera enforcement, as well as a steady rise in the cost of now camera-enforced tolls.

By the end of 2021, the news website The City (where I work) reported that nearly 5% of red light and speed camera images were unreadable, costing millions in uncollected fines while emboldening drivers to engage in dangerous conduct. The number of moving violation tickets written by NYPD traffic agents and officers has plunged as cameras have taken over enforcement. The widespread dodging by casual violators provides cover for criminal activity such as organized shoplifting, the NYPD has warned. Police also point to the fake plates/crime nexus as a major driver of high-speed chases that are injuring bystanders.

Grand Theft Auto has come to life on the increasingly dangerous streets of the city, where the Vision Zero trend toward reduced injuries and fatalities is now in reverse gear, with road deaths rising.

Within the world of street safety advocates, the necessity for more speed cameras is gospel — and there’s evidence speeding has indeed ebbed since cameras have been active 24/7. But it’s also dangerous to assume more drivers won’t try to dodge the lenses, especially as congestion pricing tolls come to Manhattan. David Simon, the Baltimore journalist who created The Wire, got properly roasted after he took to X (formerly Twitter) to complain about a $50 speed camera ticket incurred driving in New York City predawn at 36 mph — but his tirade also tells us that the cameras still have a legitimacy problem that will continue to inspire evasion. The screw-this crowd doesn’t just include out-of-towners.

In an accident of timing, the expansion of speed camera enforcement to 24 hours a day, 7 days a week, 365 days a year from much more limited school-day hours happened not under Vision Zero crusader Mayor Bill de Blasio but in the first months of Mayor Eric Adams, accompanied by a cursory and cryptic public awareness campaign that contrasted with extensive education efforts surrounding earlier street engineering measures. 

Surely safety benefits resulted from the change. What were they? The ads didn’t say.

Lawmakers who hope that technology can help them maintain public order in an era of strained budgets and understaffing may well be onto something. But without steps to build a culture of buy-in, their code will crash.