Is it possible to require a contract when staying in collaborative accommodation? If so, with what content? Would this be the same contract as the one signed with a hotel or extra-hotel business? Should we rely on what can be considered a private hospitality agreement? These are some of the questions that the latest book by Inmaculada González, professor of Commercial Law at the University of Las Palmas de Gran Canaria (ULPGC), analyses in 'El alojamiento colaborativo o el nuevo hospedaje low cost', published by Dykinson, how the traditional accommodation contract or tourist accommodation is adapted or not to the new collaborative economy from the perspective of private law.
The Internet has favored a more agile way of contracting accommodation through mediation platforms such as Airbnb, Homestay, Wimdu, VRBO or Booking itself, or systems that allow exchanges such as Home Exchange, Love Home Swap, Couchsurfing, among others. The first seem to fit better in a business model similar to that carried out by the regulated sector, that is, in the traditional sector known in the Canary Islands (hotel and extra-hotel accommodation), while the second are properly a model of hospitality consumption.
The contract that serves is as the basis for the relationship between host and guest to regulate the consideration for these services is a private contract between an entrepreneur and a consumer, which cannot be ordered by the Autonomous Community, but by the State. However, the Canary Islands, with the logical aim of providing some security for tourists, requires the hosts a written contract, in English and Spanish, prior to the entry of the travelers or, failing that, at the time of check-in, the delivery of a document containing the fundamental clauses of the contract, signed by both parties.
In the opinion of Inmaculada González, who is the head of the Tourism, Territorial Planning and Environment Group (TOTMA) of the University Institute of Aquaculture and Sustainable Marine Ecosystems (ECOAQUA) from the ULPGC, while agreeing that this measure protects the user, it does not seem that it can be demanded of a host, when in the same terms it is not required of the hotel and extra-hotel entrepreneur, although, for all, it is considered that this contract should be regulated.
According to the expert in tourism law, a large part of the problem that emerges with the use of these platforms lies in the competences that the autonomous communities have in the that area of tourism, although they do not have the competence to regulate the basic contract for the most part. An example of this is the Canary Islands, which, lacking its own competence to regulate the contract, does seem to subject the relationship to the accommodation contract, although, when it deals with the regulation of this activity in the current Regulation on holiday homes of the Autonomous Community of the Canary Islands, it does not do so properly, generating multiple problems that have led both the High Court of Justice of the Canary Islands, first, and the Supreme Court, later, annulling some of its precepts.
Accommodation contract
The accommodation contract is a document by means of which one of the parties (hotelier) provides accommodation and other types of related services to the other part ("guest") in exchange for a price. There are other legal relationships that today cover vacation rentals, from the lease itself for some cases or private agreements in accordance with the civil code, but only the accommodation contract serves as the basis for these same relationships in the traditional regulated sector.
The head of TOTMA understands that this contract has undergone a series of modifications to adapt it to the current services that are provided and demanded through these platforms, as it is not possible to require from the host of a vacation home the same services and guarantees that are demanded from the hotel and extra-hotel professional. For the same reason, tourists staying in these properties do not have the same rights and, sometimes, the same legal protection.
For this reason, she refers to the accommodation provided today in tourist homes in our country as low-cost accommodation, as it generates a correlation between a price that is closer to that obtained in the regulated sector, but also assumes a reduction in the services provided to the tourist by the host.
Inmaculada focuses her book especially on the Airbnb platform. In 2019, the Court of Justice of the European recognized that Airbnb is a company that provides an information society service and is not an accommodation service provider, understanding that through this platform a host or landlord contacts a guest or tenant, with the company providing a series of services to the host such as photographs, insurance, evaluation, etc., which will be accessory to the main service, but also recognizing that the parties (host and guest) could reach the same agreement by different means or in different ways.
This ruling is, according to Inmaculada González, "especially relevant" in that it transfers responsibility to the owner of the property for the information to be offered to the guest, which must be collected and maintained on the web platform, as well as for the fulfilment of the main service.
The author, however, also partly disagrees with the high court's ruling and demonstrates through Airbnb's own clauses that, although the platform declares that it is not involved in the dealings between host and guest, it does end up being liable to the guest or tourist, even if only in part, for the lack of compliance with the obligation assumed by the host advocates a different treatment to the current one for this and other companies that compete with the regulated accommodation sector.
"This issue should be addressed by EU law, giving a mixed or hybrid character to this type of collaborative economy business, something that would provide better support to the relationships that arise between the platform and its users, as well as between them," says professor González Cabrera.
What is exposed in this book is the result of several research projects in which the head of the TOTMA group of the Universiy Institute ECOAQUA has participated, among them, the one awarded by the Ministry of Economy, Industry and Competence, under the title: ‘Desmontando la economía colaborativa: Hacia una nueva forma de comercialización de productos y servicios’; the one awarded by the ULPGC and financed by the Consejería de Economía, Industria, Comercio y Conocimiento del Gobierno de Canarias: ‘Aspectos económicos y jurídicos de la economía colaborativa en Canarias. El caso de la vivienda vacacional en Gran Canaria’; and the one granted by the University of Cordoba in the framework of the R+D+I Projects of the Programa Operativo FEDER Andalucía: ‘El régimen jurídico del turismo colaborativo en Andalucía. On the Spanish, Portuguese and Latin American (dis)regulation’.