Airbnb and service charges

A pair of American entrepreneurs, Brian Chesky and Joe Gebbia, started Airbnb in 2008 in San Francisco, California, because they had a spare couch and rental prices in the city were astronomical. Today, the company is worth more than one billion dollars.

On its website, people register as hosts (landlords in legal parlance) or guests (renters), or both. Guests then rent online the housing that the hosts advertise. It can be a whole house, an apartment or just a bed and breakfast (hence the name – AirBed & Breakfast). Most of the time, these are short-term rentals of a few days.

The popularity of Airbnb is growing around the world. In the Czech Republic alone, we can find up to thousands of accommodation offers.

So what is the problem?

After all, everything is legally risk-free for both landlords and tenants. The payment is made through the Airbnb server and everyone is rated regularly. The service therefore provides comfort and security for both parties.

However, the bits are often the neighbours of the hosts (landlords) in the apartment buildings. The person who rents out an apartment via Airbnb usually only signs up one person, but has 4 or 5 people in the apartment almost continuously. Guests create a reasonable “hustle” and, of course, consumption. The host also does not charge local taxes like hotels or other accommodation providers. So in short, the state and municipality comes in.

Can Airbnb rentals be banned?

Here it is necessary to distinguish what type of ownership of the apartment is involved. If the apartment is privately owned, the owners of the other apartments in the building can do practically nothing about renting it out. The owner is completely free to dispose of his apartment and only has to comply with basic hygiene standards and not disturb the ownership of others. The only chance is to challenge specific offences, e.g. against the house rules.

In the case of cooperative housing, on the other hand, most cooperative owners can rule out renting via Airbnb altogether. The cooperative as a whole is the owner of the apartment, not the individual members, who formally only rent the apartment. Most co-operatives can then, according to the statutes, not grant consent to subletting and thus prevent these short-term rentals altogether. As such, we will address subletting in one of our next blogs.

How to allocate costs fairly?

The law does not define all the services that can be provided in connection with the use of an apartment or non-residential space in a building with apartments. Rather, it prefers that the residents agree. This is always the most reasonable way.

However, what if the landlord claims that no one lives in the apartment for a long time, only a few friends stay there occasionally (while the apartment is consistently rented out via Airbnb)? In this case, some services are based on actual consumption (or from previous years) or on the floor area of the apartment. For some, however, this rule cannot be applied. Unless the occupants of the building agree, the number of persons registered is used according to the law, especially for charges for garbage collection, lift operation, lighting of common areas in the building, etc.

The persons who are decisive for the allocation of services are the owner of the flat or his/her tenant and persons who can be considered to live with him/her for more than 2 months during the billing period.

This is where the problem arises, because through Airbnb the persons rotate, so that several persons live in the apartment for most of the year, but none for more than 2 months. An honest landlord should take this into account. However, if an arrangement is not possible, one can consider breaking this rule in court. The higher courts, if the arguments are properly presented, could give priority to the purpose of the law and interpret the term person to mean actually a “non-specific” person just for the purpose of measuring consumption and not necessarily a specific person. However, such a dispute has an unclear outcome and it will also be difficult to prove everything (e.g. by statistical methods). However, it is possible that we will see a case law soon, or the legislature will act under pressure.

Incidentally, as regards tax evasion, some countries are already preparing special “Airbnb” legislation (e.g. Canada) to bind landlords with similar obligations as hostels and hotels. In San Francisco alone, rentals under 30 days without a special license are already prohibited.

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