New Rule of 6 in England

[Sandra544]

Hello

can anybody help as Airbnb support haven’t come back to me promised .

the new Rule if 6 due to be introduced in England from Monday September 14th renders the vast majority of our upcoming bookings invalid as our properties sleep 15.

how do I best go about cancelling them so as to ensure the guest gets a full refund and I do not get penalised in the process as it would now be illegal for those bookings to go ahead.

i cancelled one today but Airbnb refused to unblock the dates on my calendar post cancellation so I don’t even have a chance of taking a new booking that meets the 6 person rule. 
thanks for any help 

[Ian-And-Anne-Marie0]

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@Mike-And-Jane0 wrote:

Oh no I was there.However it was not clear to me in law if changing a policy referenced in a contract (the Ts and Cs) is a change to the contract. Somewhere in my memory says it isn't.

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That's the sort of certainty which gets people into trouble. You could always just sit on the fence and let it all happen without saying anything and just allow hosts worldwide just get hung out to dry - on that one.

It was an illegal change of contract, it was not notified to members, it still hasn't been notified to members, it is an illegal change of contract, and changing contracts after they have been entered into is, and forever will be illegal.

@Mike-And-Jane0 

[Mike-And-Jane0]

If. you read the Ts&Cs publishing a change on the website is deemed notification. Have you actually read the whole contract? 

[Ian-And-Anne-Marie0]

@Mike-And-Jane0 wrote:

If. you read the Ts&Cs publishing a change on the website is deemed notification. Have you actually read the whole contract? 

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I've read the T&C's many, many, many times....

They are so contradictory and full of holes that multiple mentions of notifications occur. This in itself - the contradiction - is a viable case against Airbnb to reclaim lost cancellation fees on the basis that the T&C's are not clear. Even though publishing a 'notification' such as you refer does not make and never will make it applicable to contracts in effect and all those agreed before the change. All those contracts were adversely affected and would be justified by way of compensation for losses.

More pertinent to this thread, terms which are clear are the exclusions to the Covid-19 Extenuating Circumstances policy and the rights of the host to apply their cancellation fees in all qualifying cases.

These are:

transport disruptions and cancellations;

travel advisories and restrictions; 

health advisories and quarantines;

changes to applicable law;

and other government mandates such as -

    evacuation orders,

    border closures,

    prohibitions on short-term rentals,

   and lockdown requirements.

In all those circumstances the host’s cancellation policy will apply as usual.

[Ian-And-Anne-Marie0]

@Mike-And-Jane0 

You have already done more than enough damage already in my guests' case..

My guest cancelled quoting this thread to me in a message before I even knew about it and specifically quoted your untested ''frustrated contract' theory and consequently because of following your advice will have lost 50% of the payment they made - that payment being the equivalent of all the money they had paid to date, plus all of Airbnb service fees (because that's the contracted agreement). They could have re-scheduled or amended their group size, but they didn't even ask to do either of those so reliant and hopeful were they on your theory.

The Contract, Terms and Extenuating Circumstances facts applicable to this booking  and any made after March 14th 2020 firmly place your advice in the wrong and will result in guests' losses on cancellation, because that's the contracted agreement.

[Mike-And-Jane0]

Will you at least accept that the law of England overrides any contract made between two parties? Lets hope your non-guest recognises this and seeks redress in the courts

[Super47]

@Mike-And-Jane0

Well, as much as you'd clearly love to see @Ian-And-Anne-Marie0 (and countless other hosts, it seems) deprived of their income, there's a very good chance their non-guest would lose in the courts, for a number of reasons. The ancient frustrated contract law that you're so utterly obsessed with, is by no means black and white - particularly under the current untested, unprecedented circumstances - and is subject to many exclusions. 

Frustration of a contract under English law can be notoriously difficult to establish, and the circumstances in which the doctrine can be invoked are narrow. There have  been no English court cases to date dealing with a pandemic in the context of frustration.

When deciding whether a contract is frustrated, the courts will consider the specific contract terms; the factual background; the parties' knowledge; and the parties' ability to perform the contract

Several factors would need to be taken into account by any judge considering such a case as this one - 

1. The guest agreed to the terms of the contract in place upon booking - including the Extenuating Circumstances policy in place at the time, which specifically excluded their reason for cancellation.

2. They were fully aware that the pandemic was a known event when they booked, yet consciously chose to take the risk of booking a trip, in the full knowledge that their plans could very well be thwarted at the last minute, by any number of eventualities.

3. There were many other options open to them at time of booking that would have offered them a greater degree of insurance/assurance, and mitigated their risks - booking a listing with flexible cancellation policy, for example. Yet they still chose to book a listing with strict cancellation. 

4. No attempt was made by the guest to renegotiate the terms of the contract or reach a mutual compromise with the host - reduce group size, move dates etc.

5. The host stood ready and willing to provide the service as offered - all that was required to avail of that service was a slight modification to the booking numbers by the guest. It was in no way an 'impossibility to perform' situation. 

All those arguments (and more) would have strong bearing on the judge's ruling. And under the circumstances as put forward hitherto, it would be highly unlikely that the outcome would be a happy or favourable one for @Ian-And-Anne-Marie0 's 'non-guest' 

[Mike-And-Jane0]

@Super47 I agree that the specifics have not been tested yet in court but I am confident they will be soon. I totally agree that it is the specifics that need to be looked into and I could make the following list:

1) It was a booking taken during a known pandemic

2) At the time of booking there was no lockdown and it would be legal for the guests to travel and stay at the destination. There was no requirement in the Airbnb contract to take out insurance.

3) At a later date the Government changed the law and stopped more than 6 people (if different families) from staying in destinations in England

4) If the predominant reason for the trip was for more than 6 people to meet up then the fundamental reason for entering into the contract has been frustrated {Note it is this concept that would have to be tested on a case by case basis until precedents have been set}

5) If the contract is frustrated then the neither party is at fault and the contract is effectively set aside

6) Payments to the host would then be determined to the extent that the host had delivered the service

As I say until  non-guests take a claim to the CMA or the small claims court we will never know which list is correct.

Let me also be clear that I will support any of our guests, whenever they have booked, in getting a full refund including their service fees if they cannot travel or stay with us due to illegality. I would hope other hosts on Airbnb would do the same thing but clearly some will not. Each to their own I suppose.

[Ian-And-Anne-Marie0]

Thank You @Super47  Your Government and Legal Procedures knowledge is proving highly evident. I'm grateful for your input along with many other host's, I'm sure.

If the part time hosts using Airbnb to supplement their guaranteed government paid incomes and index linked pension payouts were a little more compassionate towards the rest of the world's Airbnb hosts who have had to suffer the indignity of being evicted and made homeless and those who have had their incomes decimated by wrongly verified cancellation decisions based on manipulated T&C's and Policies, then there would be no need to praise Airbnb so highly on this occasion, their full acknowledgement that they are applying their Extenuating Circumstances policy to the word and to the benefit of hosts as it was fully intended, deserves to be stated.

Rarely does this happen, but it has. Applying policy in this equitable manner deserves the acknowledgement and praise it deserves.

Criticism of legal, original Contracts in their entirety undermines the basis on which Home hosting is about, trust.  In dealing fairly and respectfully with Guests, full cards on the table, Hosts expect to be equally respected and their contracted bookings honoured in the manner which was agreed.