This is the third post in my Airbnb series.
The rights you have as a landlord / host and as an occupier / guest will depend partly on the legal type of occupation your ‘guests’ have.
This is an important point – as the legal rights and obligations which vary include things like whether or not and if so how you can evict someone who refuses to leave, and what health and safety obligations apply.
Most people are a big vague about this sort of thing. Airbnb refer to them as ‘guests’ which implies a situation similar to hotel guests where the guests do not have many legal rights.
However, the legal status of someone living in property does not depend on the advertising platform used to find them. It depends on the nature of the letting. So lets take a look at this.
Tenancies and licenses
There are two main legal categories that apply – a ‘guest’ can either be
- a tenant, or
- a licensee
The difference between the two is pretty fundamental.
- A tenant actually owns the property* – subject to the rights of their landlord (which are probably considerably less than you think).
- A licensee has permission to occupy the property and is therefore not a trespasser – meaning that the landlord’s rights are stronger
(*Another way of saying this is that the tenant owns a legal interest in the property, which gives them control of it.)
Whether you have a license or a tenancy is not something you can determine just by agreeing this with the tenant or putting it on the document they sign. Or by the wording in the advertisement used to find the occupier. It depends on the circumstances of the letting.
One of the most important cases in landlord & tenant law is Street v. Mountford in 1985 which said that where an occupier has ‘exclusive occupation’ of the property (including a let of a room) this cannot be a license. I explain this in this post – which please read for more information on this point.
So what will the occupation type be for YOUR Airbnb letting?
Hosting guests on Airbnb
There seem to be the following situations (according to Airbnb) :
- Private room
- Shared room, or
- Whole place
However so far as occupation rights are concerned – it’s not that simple. Let’s look at rooms first:
Letting rooms
Lodgers – if you rent out a room in your own home (while you are living there) and share living accommodation, this is a lodger situation and it will normally be a license.
Shared rooms – if your guests are sharing but are not a couple, for example in a dormitory or hostel type situation where strangers share a room – this is also a license
Private rooms – unless you are living in the property (as in lodgers above) – this will normally be a tenancy as the occupier will have ‘exclusive occupation’ of the room. However in some circumstances, for example, if you provide cleaning services where cleaners (or you) regularly just go in when they are not there – it will probably be a license.
Whole place
As your ‘guests’ will almost certainly have ‘exclusive occupation’ of the property – this will almost certainly be a tenancy.
However, if it is ‘serviced accommodation’ where there are cleaning services and any other services where you have keys and go into the property regularly to clean and change sheets etc, it could be a license.
Note also that it will be a license if you are letting a boat – such as a houseboat – as a boat (not being land) cannot be the subject of a tenancy.
So that’s a quick outline of the tenancy/license options. That’s not the end of it, though, as there are several tenancy types that could apply.
Let’s have a look at this.
Tenancy types
Assured shorthold tenancies – this is the ‘default’ tenancy type which will be created (under the Housing Act 1988) unless one of the exceptions apply.
The exceptions are all set out in Schedule 1 of the Act. Most of them will not apply in an Airbnb situation. These are the most relevant:
Holiday lets – this is where a property is let for the purpose of a holiday only. Generally, this will be where the guest has a main home elsewhere and the let is for less than 3 months. However, these last two on their own do not necessarily mean it is a holiday let, So it is best to actually say in your agreement (if you use one) that the property is being let solely for the purpose of a holiday.
Resident landlords – this is where the landlord lives in self-contained accommodation in the same building. For example a granny annex or ‘garden flat’.
High rent lets – this is just included for completeness as it probably won’t apply very often! But if a property is let at a rent of over £100,000 pa (or equivalent) it will not be an AST.
Remember
These rules will always apply. The fact that Airbnb describes people as ‘hosts’and ‘guests’ does NOT change their occupation rights.
Airbnb is just an advertising platform (albeit a very effective advertising platform). A way to find people to rent to and earn money. Using Airbnb does not change the law.
In my next post I will be looking at the various legal rights and obligations that will apply to the different letting types.
Note – If you are an Airbnb host looking to learn more about your legal rights and obligations – click here.
