What happens when guests book into an Airbnb property or a guest house and then refuse to leave?
This happens more often than you might think, especially with Airbnb lets, because the hosts are usually ordinary homeowners with a bit of extra space, which they let out to supplement their income.
Airbnb is built on the premise of the “sharing economy”, where people share underused assets for cash. Because most Airbnb hosts are not professional landlords, guests may take advantage of the more relaxed relationship. There are also questions raised about how well Airbnb oversees the whole process of hosting and being a guest.
The website airbnbhell.com is a platform for hosts and guests alike to vent about their bad experiences, and there are many. One guest sublet the Airbnb property she was staying in to a film company for a TV commercial shoot!
Evictions under lockdown
The past two years have been strange and taxing for all of us. We have been living under a national state of disaster, of varying levels, which has impacted on normal policies and procedures. Under Alert Levels 5 and 4, no evictions were permitted.
The current state of affairs
We are still living under an adjusted Alert Level 1. Though certain restrictions were eased on 31 December 2020, the prohibition against eviction remains. In the words of the Disaster Management Act Regulations: “A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster unless a competent court has granted an order authorising the eviction or demolition.” The Act goes on to cite a range of conditions that must be met in order for an eviction order to be executed.
What does this mean for Airbnb hosts and guest house proprietors?
The alert levels have changed regularly over the past two years, up and down the scale of severity, so it’s not surprising that some guests are taking their hosts for a ride. They claim protection not only under the Disaster Management Act but also under the Prevention of Illegal Eviction Act – PIE.
However, PIE does not apply to guest houses, hostels or Airbnb premises. A case appeared before the Western Cape High Court 10 years ago – Yussuf and Another v Ye Khan Investments CC and Another. Applicants claimed that the premises they occupied constituted a hostel and not a guest house, and they were entitled to protection from eviction.
The judge found for the respondents, saying that the PIE Act “…was passed to provide some protection to squatters and other persons who were occupying land or premises unlawfully and without any leases because they were desperate and had no other form of shelter or home.” A guest house does not qualify for protection in terms of the PIE Act because “…occupants in a guest house are occupying the premises for a fixed period of time with the express consent of the owner or the person in charge of the premises. This is a commercial property, like a hotel, which provides for short-term occupation of persons who are visitors and not to persons who are long-term occupiers of land or property because they have nowhere else to live.”
Protection for destitute persons
The judge continued, “I also do not accept that there is a difference between a ‘guest house’ and a ‘hostel’ which would render the latter susceptible to the provisions of the Pie Act, but not the former…That is not the purpose of the Act or the Constitution which provides protection to persons who are destitute and have taken refuge in some or other property because they have nowhere to live. The Act cannot be applicable to persons who move into a guest house or hotel.”
Airbnb
Airbnb was founded in 2008 but did not arrive in South Africa until 2010. At the time of the aforementioned judgment, Airbnb was not a significant player in the accommodation industry and was not mentioned in the case.
However, despite being untested in case law, Airbnb functions as a guest house or hotel for its users and is usually chosen as an alternative to these types of traveller accommodation. Therefore, it is hard to imagine an Airbnb guest being treated any differently in law to a guest house or hotel guest.
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