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AIRBNB – LEASE OR LICENCE?

Does an AirBnb arrangement create a lease or licence?

Due to the advent of online letting platforms such as AirBnb, short-term rentals have become increasingly popular. However, these kinds of arrangements present many legal ramifications.  The case of Swan v Uecker [2016] VSC 313 is a recent example of how AirBnb can create confusion about whether such arrangements can be classified as a lease or licence.

The Facts:

A landlord leased a two bedroom apartment to a tenant under a lease. The terms of the Lease permitted subleasing but required the consent of the landlord. . However, without consultation with the landlord, the tenant entered into what they classified as “licences” with Airbnb guests. These “licences” allowed AirBnb guests to stay in the apartment for between three and five days and occupy the entire apartment without the tenant being present. As part of the arrangement, all of the bookings were made online, the guests agreed to leave at the end of their stay and the premises were said to be the tenant’s principal place of residence. [...]  READ MORE →

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Case Update – Prior landlords potentially liable for past GST

MBI PROPERTIES PTY LTD V COMMISSIONER OF TAXATION [2013] FCAFC 112

Federal Court of Australia

The Australia Taxation Office (“ATO”) has appealed to the High Court the decision in the case of MBI Properties Pty Ltd v Commissioner of Taxation. If the High Court is to grant the appeal, GST liability could potentially transfer from the current landlord to the landlord at the time the lease was contracted. The Federal Court holds the view that the landlord who contracted the lease, should be liable for the GST, irrespective of the land being sold. [...]  READ MORE →

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Calling upon a bank guarantee – not as simple as you think

The decision in Universal Publishers Pty Ltd v Australia Executor Trustees Limited [2013] NSWSC2021 suggests that the ability of a landlord to call upon a bank guarantee for the purpose of reinstating and remediating the premises depends upon the terms of the lease.

If the lease provides that the landlord can call upon the bank guarantee for an actual breach of the lease or an actual default by the tenant, however the landlord cannot call upon the bank guarantee where there is only claimed or alleged breach or default by the tenant. [...]  READ MORE →