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Is Airbnb "Fairbnb"?

View profile for Robert Dempsey
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To mark the 10th anniversary of Airbnb, Rob Dempsey of Roythornes Solicitors considers the legal issues surrounding this recent holiday phenomenon in the context of personal injury law.

Airbnb has become an increasingly popular preference for people staying in the UK or abroad. Providing customers with the opportunity to “book unique homes and experiences all over the world”, it is easy to understand Airbnb’s popularity.  

If someone is injured whilst staying at Airbnb accommodation in the UK or abroad, however, there are a number of potential obstacles to holidaymakers seeking a remedy.

Contract law

One would expect there to be a contractual relationship between the holidaymaker and Airbnb. Once the holiday is booked online, money is transferred directly to Airbnb, not the owner of the accommodation.

The first difficulty that arises is that, realistically, people rarely read the full Terms of Service which set out the contractual terms. 

Within the terms Airbnb set to avoid any contractual obligations by stating they do not enter into any contractual relationship, and the contractual relationship exists solely between the holidaymaker and the owner of the property.

The Terms of Service also restrict Airbnb’s liability for injuries to the extent Airbnb could avoid all responsibility.

If a direct contract is created between the holidaymaker and the owner of the property, there would be an implied understanding the contract would be carried out with reasonable skill and care. If it could be shown injury arose as a result of a failure to exercise reasonable skill and care, then the holidaymaker could have a remedy against the property owner.

Occupiers Liability Act

In the UK, Airbnb guests would, by definition, be “lawful visitors” as defined in the Occupiers Liability Act, and therefore be owed a duty of care. The responsibility would be on the “occupier” to do what is reasonable to make the premises reasonably safe. The test of who is an occupier is one of control. Airbnb would have no control over the property and, again, any remedy would not seem to be against them. If the holiday was booked through a third party such as Airbnb, it may be difficult to identify who has control of the premises for the purpose of identifying the correct defendant.

Common law negligence

Aside from a remedy in contract or under the Occupiers Liability Act, there is a potential remedy under the law of negligence. Arguably. both Airbnb and the owner of the property would owe the holidaymaker a duty of care. The key test however would be one of foreseeability.  Airbnb could feasibly argue it was not foreseeable that injury may occur as they would not have knowledge of the condition of the property. Again, the onus would be put on the owner of the property rather than Airbnb.

If a claim were pursued against an occupier of property either in contract, in negligence or under the Occupiers Liability Act, any claimant would want to be assured the potential defendant has insurance in place.

In normal circumstances, those properties would have home insurance in place which would indemnify the owner against a claim for injury. These standard policies would apply to residential properties. Business insurance would be separate. In allowing a property to be used by Airbnb a business relationship is effectively created which may invalidate any policy, again leaving the injured holidaymaker potentially without a remedy.

Airbnbs abroad

The growing attraction of Airbnb over the last 10 years is that it allows holidaymakers to travel across the world obtaining an authentic experience of various cultures rather than staying at a hotel.

There would however be additional difficulties in pursuing a claim for injuries sustained whilst staying in an Airbnb abroad.

The restrictive Terms of Service have already been touched upon.  Furthermore, there are added complications as to which jurisdiction would apply if a claim were to be pursued.  The purchase could be made in the UK, with payment being made to a US-based company, in payment for a holiday in, for example, Italy.

It has already been identified any claim would be against the owner of the accommodation itself rather than Airbnb. In these circumstances, the relevant law would be by reference to where the accident occurred.  The standard of care would vary from country to country and the costs of pursuing a claim may be so prohibitive to the extent a holidaymaker would not have a remedy at all.

If the injury occurred within the EU then, for the time being, European legislation would allow an injured holidaymaker in the UK to bring direct action in this country against the insurer of a defendant living in an EU member state.  If a claim were pursued against the defendant in the EU or beyond, it would still be necessary to instruct a solicitor from the country where the accident happened to provide help and guidance.  This could be costly.

As more services, including holidays, are offered online and on a global basis, the pursuit of a claim whether in contract, negligence or statute is becoming more complex.  This can be at the cost of consumers and allow larger organisations to hide behind a “corporate veil”.

The popularity of Airbnb continues. It provides a positive experience for thousands of holidaymakers every year. The above risks however should not be discounted completely and may point to the importance of checking the Terms of Service and taking out insurance prior to travel.