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Listing a spare bedroom, apartment or house on a short-term letting platform like Airbnb, generates an income for many South Africans, but what if the guests move in and then refuse to leave?
"This happens more often than you might think, because the hosts who list on these types of platforms are usually ordinary homeowners with a bit of extra space, which they let out to supplement their income," says attorney Simon Dippenaar of Simon Dippenaar & Associates.
This type of short-term letting by listing your property on such a platform is built on the premise of the "sharing economy", where people share underused assets for cash, he explains.
"Because most such hosts are not professional landlords, guests may take advantage of the more relaxed relationship. In SA we are still living under an Adjusted Alert Level 1. Though certain restrictions were eased on 31 December 2020, the prohibition against eviction remains," says Dippenaar.
The Disaster Management Act Regulations state that "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 cites a range of conditions that must be met in order for an eviction order to be executed.
"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 (PIE) Act," says Dippenaar.
However, says Dippenaar, PIE does not apply to short-term letting premises. He says there is case law that found that a guest house, for example, 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".
Dippenaar points out that, at the time of this judgment, short-term letting platforms like Airbnb did not yet exist. That is why, in his view, it is hard to imagine a short-term letting guest being treated any differently in law to a guest house or hotel guest.
He has already received several queries from short-term letting hosts who have had guests overstay and then claiming PIE rights and points out that, ultimately, the issue will have to be tested in court.
Fin24 reached out to a number of short-term letting platforms to ask what their approach is to guests overstaying at properties listed on their sites. Only Airbnb responded.
"With over one billion check-ins on Airbnb to date, isolated issues are incredibly rare, and our global Community Support team is on hand 24/7 to help our community. Everyone who uses Airbnb must accept our Community Standards and Terms of Service, and violations can result in penalties and removal from the platform," explains an Airbnb spokesperson.
"Hosts on Airbnb are protected by AirCover, which provides $1 million host liability insurance and $1 million host damage protection. AirCover is free for all hosts, and covers every booking made on our platform."
