Love thy neighbour as thyself – Short-term rentals and the law

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31 Jan 2022

Can this 2000-year-old commandment effectively address the complexity of contemporary disputes between neighbours? Many have found that trying to love one’s neighbour is not always the easiest thing to do.

Now take it a step further – your neighbour decides to offer his/her unit as a short-term rental and registers it with Airbnb. You must now contend with a continuous flow of different neighbours, who are often holidaymakers ready to party the night away. These short-term neighbours increase the exposure of tenants, landlords and the property to many potential offences and nuisances, including heightened security risks due to the high volume of visitors coming and going, potential immoral use of units, general nuisances such as disturbing noises, foul odours and smoke, and damage to common property and that of other tenants. Other challenges include trying to enforce the rules of the sectional title scheme.

In many cities around the world, short-term rental is either illegal or must comply with a very stringent set of rules. For example, a bill was signed in New York City forbidding short term renting on platforms such as Airbnb. In South Africa there is no law prohibiting short-terms rentals.

Short-term rentals have become a popular and lucrative way for owners to rent out second properties or unused space in their actual homes. But just like there is no law prohibiting short-term rental, there appears to be little action an aggrieved neighbour can take against the owner of a rental unit.

Some Body Corporates or Homeowners Associations might include specific rules regarding rentals, but it is difficult to report and act against a visitor on a short-term stay. Conversely, the safety measures enforced by the Airbnb platform appear to protect both the host and the guest.

Going to war with your neighbour is generally not the ideal solution, whether in or out of court. There are routes to explore before resorting to litigation. Begin with the Body Corporate of your complex, together with the Managing Agent.

In terms of the regulations to the Sectional Titles Schemes Management Act 8 of 2011, the Body Corporate must ensure that a unit is not used in a manner as to unreasonably interfere with other persons lawfully on the premises. The Body Corporate can, however, amend the rules of the scheme if it is approved by the Community Scheme Ombud Service and, from date of approval, the new rules will be valid and binding on all residents.

Lack of adherence to scheme rules by short-term tenants can be dealt with by the Managing Agent on behalf of the Body Corporate. It is possible for a Body Corporate to impose legally enforceable fines if it has properly adopted a carefully drafted rule providing for fining owners and residents. It can even, if necessary, sue for any damage to the common property. This is because the Body Corporate is a legal entity made up of the registered unit owners and created in terms of the Sectional Titles Act 95 of 1986.
However, when it comes to disturbances due to noise and rowdy behaviour, or odours such as tobacco or marijuana, it is often very difficult to produce evidence that will stand up to legal scrutiny.

It should be noted that a resident is entitled to lawfully enjoy a property without any unreasonable impediment. However, the use of such property must not result in causing a nuisance to neighbours.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Kelly Barnett

Kelly Barnett is an admitted attorney, notary and conveyancer. She obtained her BA LLB degree from the University of the Witwatersrand. Kelly is currently an associate at Michelle Chavkin Attorneys... Read more about Kelly Barnett

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