Airbnb has made it easy for many landlords wanting to earn income by renting out their properties on a short-term basis.
Safrea Chronicle reader, Kgothatso asks: What is the law on Airbnb in a complex and short-term leasing in South Africa?
According to Marlon Shevelew, director at Marlon Shevelew and Associates Inc., generally, there is no prohibition against a landlord offering their property over the Airbnb platform.
Furthermore, there is no prohibition against Airbnb or any short-term letting in the Sectional Titles Act 95 of 1986 or the Sectional Titles Schemes Management Act 8 of 2011. “Therefore, it is in principle permissible to do so”, says Shevelew.
“Whether it is permissible in any specific town, city, security estate, or sectional title scheme will depend on the rules that govern said area.”
Shevelew says that any city or local government could curtail the right to let properties out on a short-term basis by way of zoning regulations or other by-laws.
Additionally, the Home Owners’ Association (HOA) and Body Corporate (BC) could ban short-term rentals. These could be through inserting prohibitions into HOA or BC rules, constitutions and/or codes of conduct.
He explains that Airbnb is a platform that allows landlords and potential short-term tenants to find each other. Whether a rental is short-term or a more conventional type of lease will depend on the duration and the type of occupation, be it permanent residential or recreational.
Each BC or HOA or local government may define short-term letting differently. In Cape Town, for example, reference is made to ‘transient guests’ who make use of accommodation that is not their permanent place of residence for periods not exceeding 30 days at a time. Definitions can vary in each city and/or local government.
Shevelew says that typically, six months or more lease agreements are not considered short-term rentals. “With much of the rental activity on Airbnb being for days at a time, there is quite a wide range of lease durations which fall within the scope of ‘short-term’ letting”.
This comes down to whether the tenant is a transient guest or a resident who will reside there.
Operating an Airbnb in a sectional title scheme
Sectional title landlords wishing to operate an Airbnb do not need permission from the BC or HOA in a security estate.
However,what property owners should make certain of is whether their BC rules, code of conduct or constitution forbids short-term rentals. If so, they need to find out exactly to what extent.
He says some body corporates allow short-term rentals if they are longer than a certain number of days or months. These guidelines need to be complied with by owners.
Similarly, landlords also need to understand their municipal by-laws and zoning restrictions, as any of these could include a prohibition on short-term letting.
The regulations are constantly changing, and owners need to stay informed to avoid being caught unawares. For instance, in Cape Town, the Municipal Planning By-law had to be amended to make provision for, and consequently allow short-term letting.
Prior to this amendment, the legality of short-term letting in Cape Town was a contentious subject.
Furthermore, Shevelew says Airbnb has its challenges in the case where guests overstay their welcome. Landlords should educate themselves and be familiar with various scenarios on how to get rid of bad guests from their properties.
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Edited by Gudrun Kaiser