Short Term Vacation Rentals—Duty of Care Determined by Exclusivity

Written by Helen Jhun, Esq.

Edited by Bill Pfund, Esq.

As more individuals look to alternatives to traditional hotels when planning vacations and short term trips, the Virginia Supreme Court recently set forth what standard of care the owner of a short term rental property owner owed to its renter.

In the recent Virginia Supreme Court case of Haynes-Garrett v. Dunn, the Court addressed the issue of whether the owner of a short term vacation rental owed the duties of a landlord or the duties of an innkeeper. 2018 Va. LEXIS 131, 818 S.E.2d 798, 2018 WL 4783257 (October 4, 2018).

Under Virginia common law, a landlord has “no duty to maintain in a safe condition any part of the leased premises that [is] under [a tenant’s] exclusive control.” Isbell v. Commercial Inv. Assocs., 273 Va. 605, 611, 644 S.E.2d 72 (2007). Absent fraud or concealment, the tenant takes the premises in whatever condition they may be in, and assumes all risk of personal injury from defects therein.

There is an elevated duty of care imposed an innkeeper. An “innkeeper” is defined as “[a] person who, for compensation, keeps open a public house for the lodging and entertainment of travelers.” Black’s Law Dictionary at 792 (7th ed. 1999). These are generally accepted to mean owners who run hotels, motels, and resorts. Unlike a landlord, an  innkeeper owes a duty “to take every reasonable precaution to protect the person and property of their guests and boarders.” Crosswhite v. Shelby Operating Corp., 182 Va. 713, 716, 30 S.E.2d 673 (1944). The duties owed by an innkeeper are significantly greater than those owed by a landlord.

In this case, the owners of a vacation rental property used a third party management company to handle the rentals of a vacation home. The vacation home was rented to the Haynes-Garret family for a one week rental. At the start of the rental period, one of the renters was injured when she tripped and fell on the transition strip, or “lip” between the carpeted area and tiled hallway.

In their argument, the injured party argued that the innkeeper-guest relationship was established because the owner intended the property to be used for short stays by visitors. However, the Supreme Court held that the proper inquiry, is not whether the parties intended a short-term stay, but whether parties to a short-term rental agreement intended that the occupants be entitled to exclusive possession and control of the premises during their stay.

In its analysis, the Supreme Court found that the distinction between the landlord-tenant relationship and the innkeeper-guest relationship is based upon the extent to which the owner of the premises maintains possession of and control over the premises during its occupancy.

First of all, the property owners did not hold out the vacation home as a public pace for the accommodation for travelers. The rental property was a second home for the owner’s family and there were restrictions as to who was allowed to rent the home. Therefore, they could not be considered “innkeepers.”

More importantly, the Court held that the owners did not intend to maintain possession and control of the property during its occupancy. The owners were not allowed to enter the premises without prior notification, cleaning only took place between occupancies, and the owners provided no food service, room service, daily maid service or security. Therefore, the evidence was clear that the renters had the intention and expectation of the right of exclusive possession and enjoyment of the leased premises.

Therefore, the correct standard of care owed were commensurate with the duties a landlord owed to its tenant.





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