Miami-Dade Circuit Judge William L. Thomas. Photo: J. Albert Diaz/ALM

A Miami judge on Wednesday denied a motion from Airbnb Inc. and Airbnb Payments Inc. to dismiss a lawsuit brought by Apartment Investment & Management Co., or Aimco, over unauthorized subleases, despite a California judge dismissing a suit with the same claims.

Miami-Dade Circuit Judge William L. Thomas allowed the plaintiffs to proceed with their suit, which alleges Airbnb has continued to allow South Florida tenants to illicitly offer apartments for short-term rent, despite repeated requests to ban the practice.

Airbnb has faced a host of backlash since its 2008 inception, but this suit comes from one of the biggest residential landlords in the U.S. In February 2017, Colorado-based property giant Aimco sued Airbnb in both Los Angeles and Miami, alleging the online leasing company ignored requests to stop allowing tenants to sublet their apartments.

Aimco operates three high-end properties in Miami. Its Bay Parc Plaza Apartments is a 471-unit complex at 1756 N. Bayside Shore. Other complexes include Centrum Flamingo II and III, also known as the Flamingo North Tower and the Flamingo Center Tower in Miami Beach, with rents nearing $4,000.

Aimco alleges the issue came to its attention when residents at its Palazzo apartments in Los Angeles complained about partying tourists subletting units and causing a disturbance. It claimed that by doing nothing to stop these lease violations, Airbnb supported and profited  from the activity.

Airbnb struck back, citing the 1996 Communications Decency Act as its defense, arguing it was not liable for content users posted on its site. The law was introduced in response to minors’ access to internet pornography, and was aimed at sheltering online platforms from liability for inappropriate third-party content.

But the LA case fizzled when California federal Judge Dolly Gee sided with Airbnb and dismissed the case in December.

“Airbnb hosts, not Airbnb, are responsible for providing the actual listing information. Airbnb merely provide[s] a framework that could be utilizes for proper or improper purposes,” Gee ruled.

Aimco now brings the same allegations to South Florida on behalf of its apartment complexes. Airbnb again cited the CDA to shield it from liability, but the Miami judge overseeing the latest case refused to side with the online platform.

“This court declines to grant immunity simply because Airbnb asserts that it is simply using data initially obtained from third parties,” Thomas ruled.

Aimco applauded the decision.

“The Communications Decency Act does not protect Airbnb for its suite of brokerage and support services that facilitate, promote, and consummate short-term rental transactions from which Airbnb profits, and that Airbnb knows are illegal,” said Cindy Lempke, a spokeswoman for Aimco. “We want Airbnb to be held accountable for its unauthorized activities so that our residents have a safe and peaceful living environment.”

Aimco has appealed the California dismissal. Lempke said the company has support from “a coalition of like-minded partners” who have filed an amicus brief.

But Airbnb remains optimistic.

“Despite losing the exact same claims in a California federal court last year, and being denied its demand for an injunction in Florida, Aimco has continued to pursue its anti-tenant policies in this copy-cat case in Florida,” spokesman Ben Breit said. “We are confident Airbnb will ultimately prevail in this case, as we did in California, and [Wednesday's] order does not resolve the case. Instead, it finds only that Aimco’s claims cannot be dismissed based solely on the allegations in its complaint.”

The original complaint, filed with the Miami-Dade Circuit Court on Feb. 14, 2017, alleged “there has been dozens, if not hundreds, of unlawful subleases” at Aimco’s properties via Airbnb.

“Subletting, particularly with short term leases, causes stress and disruption to plaintiffs and to other residents of the properties,” it stated.

According to Aimco’s standard form lease agreement, residents are barred from subletting their apartments for any length of time without agreement from the landlord.

Counsel to the plaintiff, David M. Buckner of Miami firm Buckner & Miles, and counsel to the defense, Dario A. Perez of Shutts & Bowen‘s Miami office, did not respond to requests for comment.

A hearing on the case is scheduled for July 23.


Read the court order: