Legal warning for Airbnb hosts in South Africa
Many South Africans are becoming Airbnb hosts amid the challenging economic environment, but potential hosts should note potential legal issues.
A recent Airbnb survey asked over 1,800 South African hosts and guests on the platform about user trends they had noticed.
50% of respondents said they could not afford the rising cost of living, with more than one-third saying they need additional income.
Although being an Airbnb host can fetch R26,000 per annum of additional income, hosts could be held personally liable if anything happens to a guest while on their property.
Kirstie Haslam, partner at DSC Attorneys, said that a homeowner has to take reasonable precautions to ensure that their guests are not harmed – through no fault of their own – whilst on the property.
She said safeguarding against any potential hazards, such as fencing off an uncovered pool, is one of these precautions.
“A homeowner may be liable for injuries a guest suffers whilst on their property if the injury was caused by negligent and wrongful action (or an omission) on the part of the homeowner,” she said.
Homeowners also need to warn against potential hazards, such as building work, during the visit, with all possible dangers clearly explained to the guest and potentially hazardous conditions cornered off.
She added that, in principle, the law would see no difference whether the homeowner was present or not at the time of the incident.
“In the case of an unauthorised intruder/trespasser, however, the situation could be different, depending on the circumstances in which the person came to be injured.”
Not all accidents can be reasonably foreseen or prevented.
“The point of departure is that a wrongdoer (in this case, the homeowner) can only be held liable for damage which was reasonably foreseeable and preventable, and he or she failed to take reasonable steps to prevent the harm from ensuing.”
“If we take the pool example, it is reasonable to expect a homeowner to either fence off the pool, so it is not accessible to small children or install a cover which will prevent accidental drowning. For recreational equipment, for example, a swing in the garden, the homeowner is duty bound to maintain the equipment.”
“The situation with dog bites is slightly different, in as much as our law provides for strict liability in certain instances (for example, fault need not be proven).”
If someone is injured whilst visiting a private property, she said that they should note and record the condition of the property and the cause of the incident.
“The injured party should also record the details of any witnesses and seek prompt medical attention.”
Moreover, the amount homeowners’ insurance will cover is incredibly dependent on the facts, with every policy including its exclusions and limitations.
“You would not be able to claim against your own policy if you were injured on your own property due to your own negligence. If you were injured on somebody else’s property, the claim would lie against that homeowner, and they would refer it to their insurer.”’
She added that injuries caused by a wrongdoer’s neglect or wrongful omission could see a homeowner pay for hospital and medical expenses, loss of income, and general damages for pain and suffering.
Accidents caused by a guest being drunk are their responsibility as they result from their own negligent conduct.
“This does not take away from the fact, however, that a homeowner is generally responsible for the safety of his or her guests whilst on their property,” she adds.
“If, therefore, the homeowner was aware – or should reasonably have been aware – of their guest being intoxicated to the degree that they posed a potential danger to themselves or others, they would be obliged to take reasonable steps to prevent harm.”
Read: For many South Africans, home ownership isn’t an option anymore
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