Smoke and noise penalty : can owner recover thru damage deposit ?

[Denis227]

Hi there.

I'm a french owner. Born raised  and educated in France with a background in accounting , finance, and consumer law.   I  have been in the vacation rentals business in France since 2016  thru other platforms, making a living out of it. 

 I'm new to ABB : enrolled 2 weeks ago.    Until  last month ,  everything I could hear about ABB inspired me with so much aversion and mistrust that I prudently kept my distance.  On July 12,  the European  Commission finally woke up only to  spell out her  grievances against AirBnb, thereby opening the sky to new horizons in the european market of holiday accomodation. I knew  it was the perfect time to try and face the hard facts behind the AirBnB myth. So here I am. 

Two weeks down the road,  I'm  looking  forward  to (  no, better  : I'm dying to receive )   the EMAIL  address of the AirBnb Dispute Resolution Center,   in accordance with the European Rule of Consumer Dispute Resolution (ODR Regulation) dating back to 2013.  I would never ever have rented on AirBnb without having the possibility to  legally track down the petty,  non sensical, absurd  arguments raised by spotty trainees staffing the ABB  Dispute Center. 

On this subject as on many many others, AirBnb has been going illegal for many years. I knew (from what I read here and there) they were totally off the legal track and barely exploiting the lack of elementary legal knowledge of individual french owners  (don't know about laws applicable to holiday rentals in other countries though , so I won't comment  ). I just didn't care to figure out how far away from legal confines  they were running their business,   until the EC CPC did the dirty work ( or do you say the "spade job" ?) by  issuing their common position,  which amounted to a scathing  denial of  ABB 's attempt to organize its own internal "justice departement".   Did you read the EC document ?  You should . It's a pity you have to have some legal background to get the full flavor of the declaration !  It should be compulsory reading for  budding or confirmed  owners. 

The very first question I will ask Dispute Resolution team will be relative to the rules  applied to  the settlement of  so-called immaterial damages to property, namely infestation of  premises by smoke of cigarettes and kindred noxious odors, and noise pollution.   Smoking has become increasingly rare, and is no longer a major  concern for guests. Regarding noise pollution , however, I need to know  whether or not  AirBnB, who arrogates the right to manage security deposit in owners' place,   is willing  to help  owners  enforce legal obligations on daily and nightly noise levels ? And in which way(s)  ? Does AirBnb intend to penalize  tenants through deductions on their  deposit   ?  Did  owners on this  forum  already have  to manage such matters with  the ABB  litigation service ? ( your reply is expected here   ! ) 

Let me  recall  that noise nuisance  caused by short  rentals are considered the number 1  public enemy  in residential neighborhoods.  Given the scale of the problem on the other side of the Channel and the Atlantic, AirBnb can hardly claim not to be aware. 

So how does AirBnb react to owners complaints on such matters ? Does AirBnb consider that it is a civil  problem  between owners and tenants with which  the company does not have to interfere ? Which would mean that it does not intend to bite a chunk out of the deposit in case of renters going out of their mind  ? Or does the company consider it has a  responsibility to interfere in such nuisance  ? In this case, does AirBnb intend to distribute " sound level recorders"  to owners who will be trying to prove their good faith, just  to make sure the owners have the appropriate measuring instrument  ?

As far I can   I understand from  the various fora,  it is  already  quite difficult for ABB  owners to prove their good faith in case of breakage or damage to property caused by guests.  Not least (mind you)  because AirBnb never raised the smallest finger to provide  owners with appropriate tools  ( in France, the matter has been  settled once for all in the 1960's by the compulsory underwriting of a  "statement of condition"  - état des lieux -  at check in and check out.  Of course it never dawned on ABB  that they should  be providing owners with similar tools )  

So what's AirBnb  recommandations to owners  for proving the existence of  immaterial damages to their property ? I'm curious.... 

Denis 

[David126]

I do not think I have seen a Host ever recover for immaterial damages, seems unlikely any Guest would agree to pay, if they did I assume AirBnB would process it.

[Denis227]

 @David0 

Being new to ABB, I took a couple of hours to read various long threads on smoking, after I discovered the existence of this forum. I haven't read any thread  on noise nuisance yet,  but I suppose there must be quite a few  fascinating conversations out there on the subject.  

So in the end ,  it all boils down to ABB not helping owners to recover costs associated to smoke or noise damage, unless the Guest agrees to it. This is what comes out clearly  from the various testimonies. Hum..... let's see.... 

So it should be clear to everybody by now that  ABB  system is not enough protective  for owners of vacation rentals . 

So what can we do about it ? 

Can we force AirBnb to change its ways of doing business so that owners rights are better protected ?

Since the matter  has been dragging on  for years, the only solutions seems to take ABB to court  . 

How many of you , amongst those familiar with legal matters,  ever thought about this ( no matter how many ever tried to ) ?   

Which Achille's heel are you,  or your lawyer,  going to pick to make ABB understand that they must change their point of view ? In order to reply to this question, one  must study how ABB  contractualize with  hosts. 

1st principle :  does ABB protect your constitutional right  to contractualize freely and as you wish with the other party ? In principle "yes" , since ABB does not really prevent you to have a contract signed with renters,    even though it is obvious  that ABB  could not care less..... 

But in actual terms the answer is "no"  since owners are not authorized to claim (separate) payment for a  Security or Damage deposit  which is an integral part of any vacation rental contract,  as least in France  and in a few other  countries abiding by the same set of legal principles  ( not sure about US tough , since US laws do not have this strong insistence on codifying written contracts, as we do have in France ) . 

The European Commission has just opened a new boulevard for consumers legal action after endorsing the CPC Network position.  The CPC network is the network of all " Offices of Fair Trade" throughout  the EU. The CPC paper on AirBnb published in  july is worth reading.   In their general terms and conditions :  

- ABB must  stop bull**bleep**ting consumers ( my wording ! ) on making them believe that if they want to take ABB to court, they  can  do it only in Ireland (which is ABB  HQ for Europe ). EU consumers are allowed to  held  professionals liable in their own country court of justice . 

- Professional traders must disclose their identity in order not to deceive consumers 

-For each host  category ( professional  , private  etc) , ABB must indicate which checks exactly  it performs in relation to their reliability ( this one is easy : no checks apart from owner's ID  ) 

-ABB must distinguish between editorial content and advertising 

-ABB must indicate whether listings/search results are "natural " or "sponsored" or whether there are serious limitations in the scope of the search. 

Etc etc.... 

There are 13 pages by  the same token , which, all together, amount the current model of  ABB being a mere joke for protecting the rights of rental owners  (IMHO). 

The EC wants to put ABB under the custody of the european courts of justice. It is very clear when they state for exemple : 

"AIRBNB PAYMENTS shall provide ( no  "should provide"  ) an easily accessible electronic link to Online Dispute Resolution  platform on the website in addition to its e-mail address.... blablabla... (as there are ) currently no provisions of an mail address.....  " 

Since having a written backlog of written exchanges with the glorious flailing around   ODR staff of ABB  is a PREREQUISITE  to prove that these fully incompetent  guys have been  positively  DEPRIVING OWNERS from the possibility of enforcing national  laws on smoking and noise nuisance, I really look forward to be able to discuss with them by MAIL.   

As a consumer law specialist, I can assure you that those businesses who, like ABB,  FORCE their customers  to lodge their complaint over the phone  while preventing  them to do the same in writing, so that it becomes much  more complicated  for consumers to prove that their case has not been fairly dealt with by the corporation, thereby actively discouraging both hosts and guests from taking their matter to court, those businesses are  those who have the highest number of things to be ashamed of. 

[Cormac0]

@Denis227

It obvious to me, that Airbnb terms and conditions go against natural justice.

On one hand, Airbnb claims that hosts are self-employed and yet hosts don't control,

1. Deposit
2. The right to accept or reject business
3. Controlling the flow of cash.
4. Controlling the payment of fees 

please add your own comments

Most hosts don’t come from a business background and don’t realise the prices there charging undervalue their time and assets and presumably feel the additional cash there receiving is a bonus, unfortunately not so!

The realisation dawns on these host at the first sign of non-recoverable cost in the case of damage or loss to their property which Airbnb adjudges does not fall under the terms and conditions of Airbnb.

At the time of writing, there are currently 506,985 members of this community and as I write 1,067 members are online. This is a negligible percentage of the overall total and not enough hosts to start a fight back against the exploitation of eighty per cent of Hosts.

It has been my opinion for some time now, that the EU will realise the exploitation that Airbnb’s terms and condition are and will legislate accordingly ergo your post on the subject, unfortunately I think the USA is a lost cause in this regard.

On the noise issue I have terminated leases sign under my own contracts for tenants who just could not obey the rules, without any interferance from third parties, three strikes and your out clause.

[Cormac0]

@Denis227

Have you noticed how little traction your post has received?

I loathe those conspiracy theorists, but I seriously wonder, if this post is being Censored?

[Christine1]

At the Airbnb Open in LA, I  recall seeing products which assisted with noise detection and a device which could detect the number of mobile devices at premises. This can be an assistance for estimating the number of people at a venue. I think it worked by sending an alert to the host's mobile Phone. 

[Denis227]

@Cormac

Thanks for your kind  support.  I loathe conspirationists  two ( non-sense, stupidity, false ideas and illusions, all  entertained by greed,  lead  the world more than anything else  ). I don't think they would  censor and I don' t really care. I'm used to follow my own track, even if that means staying alone. I'm part of this category of people who can walk their own way  for years and  decades provided they are convinced they are right.

The two blessings  that one may benefit  from a martyred childhood : 1)   you never trust any adult anymore without a long and careful screeening of  their intentions   ;  2)  once you are convinced  something is true,  you are immune to other people  trying to reason you out  of your idea.  And  you may go to much greater lenghts  than ordinary people,  to prove that others  are wrong.  

About self employment and lack of control over one's business in the ABB model  

1. Deposit : yes , that is exactly what started my initial rant against ABB 
2. The right to accept or reject business : sorry , I can't get that one . 
3. Controlling the flow of cash : yes indeed. It would be easy to prove that not everybody is being treated equally in this respect, since some owners enjoy a so called very strict cancellation policy wich entails payment either 30 or 60 days before guest arrival 
4. Controlling the payment of fees :  please specify. I'm not familiar with all ABB wrongdoings.... 

You write "This is a negligible percentage of the overall total and not enough hosts to start a fight back against the exploitation of eighty per cent of Hosts." 

I completely disagree. A handful of convinced owners can bite in ABB's ass  big deal   by going to court alone in their respective countries, asking judges to determine that a few carefully selected key points in  ABB "contracts " with hosts  are abusive. Once this is acquired ( granted it will take some time)  all consumers from the same country can avail themselves of this decision to refuse ABB general terms and conditions and ask for compensatory damage if ABB persists. 

We are not asking to get any money back so there is no need for a cumbersome class action in my view. We are just trying to impose changes in the rules of the game. 

[Denis227]

 @Cormac1

Regarding the little traction of my message : just wait and see. 

I sense that  ABB keeps people very busy in trying to get the most out the current system. People have little time in general to ponder and try to get the full picture.  The media makes you to believe that truth is easily accessible.  That you just have to turn your TV or radio on. Nothing could be further from the truth. Truth is not free. Truth has never been easy. Truth is difficult. It's an exercice in solitude. "What am I doing ?" " Am I being fooled ?" " Am I being trampled ?" " Why do they want to tie me up?"........

If you are pointing at the moon while everybody is looking at the AirBnB sun, nobody listens to you,  until the next eclipse of the sun. 

[Ian-And-Anne-Marie0]

@Denis227 @Christine1 @Cormac0 @David126 

I'm looking at an eclipse currently resulting from the basic non-compliance of House Rules, Airbnb TOS/Terms and guests just being entitled, disrespectful louts.

The Airbnb system is unable to contain this and is a far cry from those early days of grateful respectful guests and hosts being dealt with by a fair hand.

It seems, that short of having an individual host centric short term rental agreement with guests and enforced by hosts signed at check-in, the security and enforcement afforded by the Airbnb platform and their TOS/Terms are worthless  because they (Airbnb) do not apply their terms equitably, if they even apply them at all.

The acceptance of the Airbnb rental TOS contract should and must be adhered to by both the guest and host, but the lack of enforcement of the contract and paltry resolutions make a mockery of its existence.

In its existence, only will (maybe) the booking guest be aware of the hosts expectations. These expectations are never communicated to further guests despite Airbnb having the facility to do this on all their bookings, which on a platform based on trust is just neglectful and results in all the problems seen throughout these fora.

Basically, still searching for the solution.

[Cormac0]

@Ian-And-Anne-Marie0 

The original post is from September 2018 and as you can see, he's had very little traction on this post, why? Hosts appear to be happy with the status quo, I wasn't, so I pulled all my listings, and I'm waiting for the EU to legislate against Airbnb completely one-sided contracts.

A Judge said in an America court room that the plaintiff appeared to have her constitutional rights infringed by Airbnb when she was summerly removed from the platform because a guest complained about a gun (which was obviously plastic gun) sitting on the hall table. Airbnb lawyers kept on quoting from the terms and condition robot like that Airbnb were well within the contractual rights to remove her, the judge pointed out that she was entitled to a fair hearing which she did not receive and told Airbnb to immediately reinstate her.

Forget about Airbnb propaganda and look after your own interest, they don't care about 80% of hosts, that I like to call cannon-fodder, and when they eventually have an IPO people will be shocked to their core, at how Airbnb has exploited them.

[Ian-And-Anne-Marie0]

@Cormac0 

I don't generally read or even comment on 'old' threads but since searching for solutions to smoking and House Rule transgressions by guests @Denis227's eloquent statement seemed worthy of comment. Frankly, his analysis of the problem is spot on and the French - état des lieux - would go a long way to solve many of the problems Airbnb Hosts seem to be suffering currently and might even spur a host modus operandi which would benefit them greatly. Airbnb could and should promote or help with this, although it having the controlling hand it shouldn't be necessary and they could repair their reputation in the eyes of their hosts in a moment, reduce the complaints of hosts and result in an improvement in their service ten fold.

When it is so much of a struggle for hosts to ratify even Airbnb's stated TOS/Terms which even they fail to do in a consistent manner then it is hardly surprising that there is so much dissent - as you point out in your own personal circumstances and actions.

I've had several reincarnations in my professional life and exploitation is nothing new, it is tolerated to a point until it becomes unbearable. Sadly, something which here could easily be fixed, here will be the downfall of the platform. All we can do as hosts is to carve out our own existence and work within the biases of the platform to our own advantage. As such and as always, it is easy to criticise the downfalls and not appreciate the benefits, so long as the benefits work, then some pain can be endured. 

For many hosts this pain has gone on far too long and us as (relatively) new hosts and providing a good  branded Airbnb service and providing them benefit, we're learning fast and focussing on the potential problems they are causing and planning how we will avoid those. 

I believe any service a host provides is despite the platform and not because of it, so ultimately the service will always exist but it will be just branded differently.

I arrived here wanting a simple answer to a simple question. Instead, I again arrive at the same conclusion; a simple answer just does not exist and only pain is provided to test a hosts endurance against a platforms  masochistic existence.