Draconian fine from Amsterdam

[Alex7485]

Hello there

My partner and I have been hosting on Airbnb for almost 10 years. Last year, the city of Amsterdam required that all hosts obtain a permit to host their properties legally. We immediately obtained such a permit but, of course, most of our bookings for 2020 were cancelled.

When we did get a booking for August/September it was on the back of an extremely stressful time for us. A few months later, we suddenly got a letter from the city telling us that one of its inspectors had discovered that we hosted some guests in September but didn't register them according to the city's policy and that they were threatening us with a €6.000 fine and revoking our license.

After the initial shock wore off, we realised that indeed, we had forgotten to register the guests. It was simply an honest mistake. We've registered guests before and after that group and we explained this to the city in a letter in which we also clearly stated that there was no precedent for fining us since we had not rented out our apartment illegally nor had we ever broken any laws or rented it out for more than the permitted 30 nights.

We also requested that threats to fine us and revoke our license be cancelled. 

Sadly, yesterday I received a letter in which the city told us that they were going ahead with the fine but were not revoking our license as a 'warning'. 

Quite frankly, we're aghast at the moral bankrupcy of this city and it's unbelievable practices. 

Its justification is that the fact that we didn't register the guests was a grave offense that went against its policy to curb mass tourism and that we broke the law. Given that we're in a pandemic and the visitor numbers to Amsterdam have completely collapsed, this argument is hardly relevant. 

We did indeed break the rules of registing the guests but should we be getting punished in such a form for admitting to our mistake and offering to city to make this right according to the rules? Hardly.

As a result, we're going to refuse paying this fine and we're going to take legal action and are happy to go to court over this.

Has anyone else had this happen to them and can anyone advise how to proceed? Are there any affordable lawyers out there who could help or can Airbnb provide any support?

Thank you for your help!

[Helen3]

I'm sorry you find yourselves in this situation but I am not sure your argument against the fine - that you've not done anything wrong before so shouldn't be fined this time works as a legal argument.

In the UK we have law centres and CABs that offer free legal advice but they are for individuals rather than businesses. Do you have something similar in Holland? Perhaps there is an Amsterdam host group who could advise you? 

Airbnb won't be able to provide you with free legal advice. It is simply a listing company you market your property through

They make it clear in their T&C that you as the owner of the STR business is the one responsible for complying with local STR and tourism requirements.

[Mike-And-Jane0]

@Alex7485 Is the fine draconian in size? By not paying I suspect the minimum that will happen is that your licence is revoked as well as the fine growing. You very probably feel hard done by but should you just pay and move on?

[Cormac0]

@Helen3  & @Mike-And-Jane0 

That's a Euro 6,000 fine not Euros 6  and it seem very harsh to me, so yet again the home owner takes all the risks and Airbnb takes circa 20% of turnover, now you know why their share price doubled.

I'm curios how many nights would have to let your property  just to recover the cost of that fine?  

[Helen3]

This fine was for not registering guests so  would have been applicable whichever STR company @Alex7485  used @Cormac0 

Why is it relevant what my STR circumstances are? I haven't been renting out a whole listing in Amsterdam for 10 years

I didn't comment on whether I thought the fine was fair.  

[Sophie2005]

Hi

We were in the same situation in 2018 - the time when they introduced the first version of these rules.  My daughter got reported by a neighbour when she rented her room to a couple for three nights.  We were in the flat when the inspectors came and were completely open with them (instead of refusing to open the door, which would have been a much better policy).   We got a letter threatening a €6000 euro fine.  The legal arguments that the gemeente raised at that time were nonsensical but we received advice from all of the lawyers we spoke to that there was no point trying to defend it and we would just have to pay.  The facts were that other than failing to fill in the online form to register the visit the booking would have been completely within the rules.  It was a tiny administrative mistake, which, at the time, was not flagged up anywhere on the Airbnb site.   

As we were both UK lawyers we spent the summer putting together a case (as far as we could) and eventually submitted an extremely long and detailed defence.  After that we received no further communication from the gemeente.  They didn't even acknowledge that they'd received it.  

Some time later (spring 2020 I think), in fact, just as I was trying to help another student put together a defence to a similar fine, I saw that the court had found that the gemeente had in fact never had the jurisdiction to make those rules, and was going to have to cancel all of the current fines.  It was surprising (and outrageous) that the many fines that had been paid in the meantime were not going to be returned to the people who had paid them.  At that point, finally, my daughter received a letter from the gemeente saying that they were not taking further action against her in relation to the 2018 threatened fine.

I'd be interested in hearing the outcome of your case because I'm looking into how things are for hosts now, in view of the new rules, and whether Airbnb is giving hosts sufficient information to protect them from these massive fines.  I hope you didn't have to pay it.

[Huma0]

@Sophie2005 

As @Helen3 explained above, it's not Airbnb's responsibility to protect hosts from these sorts of fines.  It makes it very clear that hosts are responsible for checking and abiding by any local laws and restrictions. As a lawyer, I am sure you know that anyone renting out accommodations, whether that is STR or LTR, should acquaint themselves with these.

@Alex7485 did not say he was unaware of the regulations. He simply made a mistake and the fine does seem very severe, but he broke the regulations, so it's not a valid legal argument to say he forgot and therefore shouldn't be fined.

However, what is more interesting is that you wrote that the court found the gemeente had no jurisdiction to make those rules and had to cancel the current fines. I'm curious as to why, if this was the case in spring 2020, they were imposing further fines for a stay that occurred in September 2020. Was there no ruling concerning the issuing of fines in the future?

[Sophie2005]

@Huma0 @Alex7485 @Mike-And-Jane0 @Helen3 

This was the relevant case in case you're interested:  

https://www.raadvanstate.nl/actueel/nieuws/@119771/amsterdam-regels-woningverhuur-toeristen/

It was decided in the highest dutch court on 29 Jan 2020.  After that the council wrote to everyone with "open" fines and cancelled them.  That was around the end of Feb 20.  There was then a kind of "free-for-all-if-you're-willing-to-risk-it" period when the Amsterdam council had to wait for the national government to pass a law which would give them the jurisdiction to make rules about Airbnb (and fine people etc).  

Despite that judgment Amsterdam did go ahead and try to ban Airbnb completely in three areas of town for the summer of 2020.  That decision was also subsequently overturned by a court on the same basis - that the council did not have the power to make those rules.

I'm not sure how quickly the government made a law allowing councils to regulate Airbnb hosts but I think it was in the summer of 2020.  I spotted on Airbnb somewhere today a pop up that said Amsterdam was the first dutch city to use these new powers.  I'm sure @Alex7485 's lawyer was more on top of these developments than me and must have used any possible objection.

Although Airbnb do seek to contract out of any responsibility towards hosts, putting the onus on hosts to check local laws (which in the case of Amsterdam is not that straightforward, because they are very hostile to Airbnb and will seek to enforce any tiny technical infringement - not just about the notice, but many other factors) what I'm more interested in is whether Airbnb could/should, by some small design changes, improve the situation for hosts so that they are aware from the beginning that there are strict rules in Amsterdam. 

For instance, when I go to set up a listing in Amsterdam I can set up anything I like, e.g 10 guests (4 is the legal maximum for any property), a property which is "self-contained" within another (strictly not allowed) etc.  Given Airbnb's huge resources and knowledge of all of these issues around the world it would be good for everyone if they would flag up for a new host that they are operating in an area where there are potentially huge fines (currently up to €21,700) for hosts who get into trouble.  Such a warning could be drafted so as not to put any responsibility on Airbnb for complete, up-to-date accuracy (although given their size I'm sure they could probably manage it if they wanted to).  Although Airbnb obviously think they don't have anything to lose by putting all of the responsibility on hosts (and offering absolutely no help to hosts who do get into trouble) this kind of voluntary ethical design would (in my view) enhance peoples' trust in their brand (and the opposite is also true).  Interested to hear any views about that.

[Huma0]

@Sophie2005 

Ah okay. Thanks for taking the time to explain. It seems like @Alex7485 was rather unlucky with the timing.

I am still not sure that Airbnb would ever be willing to get involved in this. There are different laws in different cities (not even just countries), including in London, and the laws often keep changing, so imagine trying to keep on top of all of that with a worldwide operation. I'm not saying that Airbnb's legal department aren't very aware of these laws. I am sure they must be. At the same time, I should imagine their legal team specifically advise the powers that be NOT to offer advice/guidance on these because it would open a minefield for them. They do not want to be somehow be held responsible for giving out incorrect or confusing advice. If I was them, I would also choose to keep well out of it.

They only get involved where they really have little choice. For example, in London, the 90 day rule has been in place for a while but Airbnb started to enforce it on their own system a few years ago due to external pressure and a lot of bad publicity. So, now anyone renting out an entire unit in London can only take a maximum of 90 nights of bookings per year. The system will automatically block the rest of the calendar after that. Of course, some hosts get around this by listing on different sites and taking direct bookings.

Where it is legal to operate STRs, but there are requirements involved like registering guests, then it's really out of Airbnb's hands anyway. 

At the end of the day, despite all the talk of being a 'community' and hosts being Airbnb's 'partners', this is simply not the case. Airbnb is a booking platform. Hosts pay them a fee for advertising on their platform. They are not interested in being our legal advisers as well.

[Mike-And-Jane0]

@Alex7485 tagging you so that you see @Sophie2005 's reply

[Alex7485]

Hi to everyone.

I get a lot of messages here from people who have been fined or who have been threatened with the fine and I tell everyone the same thing. Please refer to Amsterdam Gastvrij for the latest on this matter.

They are a non-profit organisation that represents both Airbnb and B&B hosts and they've been working tirelessly to help hosts like me to defend themselves against this blatant government overreach. 

There is a Whatsapp group with everyone who is currently going through this process, including others like me who are going to court over this fine and a representative of the ombudsman who has taken an interest in this case.

I cannot reply to everyone individually so please refer to this organisation who will be more than happy to bring you up to speed.

I am currently waiting for my court hearing in which we will make a strong case against this ridiculous fine. I am happy to post an update here once we've gotten to that stage and we know the outcome.

However, what I strongly recommend is to go through every step in fighting this fine and to make sure you submit your point of view, your complaint and your rejection of their final decision by going to court. You don't need a lawyer for this per se if you speak Dutch and if you don't you can also ask Amsterdam Gastvrij for help with your letters and documents. 

It's vital that we make this council accountable for its unacceptable behaviour and that can only work if everyone fights back.

Best of luck!

[Quincy]

For anyone reading: you may also want to speak with @Mirjam0 and @Mieke0 as they are very experienced, and also work closely with Amsterdam Gastvrij. 

You can visit the Dutch speaking community here.

[Sophie2005]

@Alex7485 

Great to read that people are working together now through Amsterdam Gastvrij.  Good luck with your case.

[Mieke0]

Amsterdam Gastvrij helpt alleen hun leden; iedereen is welkom zich aan te sluiten en de hulp te krijgen. Hoe meer leden hoe sterker we staan als Amsterdam Gastvrij.

Om de een of andere reden kan ik nu alleen antwoorden en niet meer taggen.

In Amsterdam nu naast het onafhankelijke Airbnb Hosts Amsterdam Groep nog een faceboekgroep onder de parapluie van Airbnb bijgekomen: 

https://www.facebook.com/groups/amsterdammetropolitanairbnb/

en ook https://www.facebook.com/groups/netherlandsairbnbhosts/

En zoals Alex aangeeft een speciale whatsappgroep voor de leden van Amsterdam Gastvrij bij behalen van een boete. De ombudsman is hierbij betrokken.

De nieuwe Gemeenteraad wil wel de eerste boete verlagen maar wij zetten nog altijd in op eerst een waarschuwing. De gemeente verandert regelmatig het spoor van beleid en dat veroorzaakt verwarring. Als je de Facebookgroep weet te vinden dan krijg je wel juiste info maar dat is het dus: hosts zijn vaak eilandjes zonder een veerverbinding. Dit ondanks de vele mogelijkheden om met elkaar in contact te komen. Lees ook www.amsterdamgastvrij.nl en stuur je vragen via info@amsterdamgastvrij.nl.

Een goed seizoen allemaal

Mieke

[Quincy]

Dankjewel voor het delen @Mieke0!