Conviction of the AIRBNB platform in civil liability
Purpose of the decision
By a judgment of the Tribunal d’Instance dated February 6, 2018, the AIRBNB platform was condemned on the basis of the common law of civil liability.
A host had proceeded to sublet his accommodation illcite for a period exceeding the 120 days per year.
The platform was then accused of not having complied with the provisions of Article L.324-2-1 of the Tourism Code which provided (article amended by the law of November 23, 2018) that:
I. – Any person who engages in or lends his or her assistance for remuneration, through an intermediation or negotiation activity or by making available a digital platform, to the rental of an accommodation subject to Article L. 324-1-1 of this code and Articles L. 631-7 and following of the code of construction and housing inform the hirer of the obligations of declaration or prior authorization envisaged by these articles and obtain from him, before the hiring of the good, a declaration on the honor attesting to the respect of these obligations, indicating if the housing constitutes or not its principal residence within the meaning of article 2 of the law n° 89-462 of July 6, 1989, as well as, if necessary, the number of declaration of housing, obtained in application of II of the article L. 324-1-1 of the present code
II. – Any person who engages in or lends his or her assistance for remuneration, through an intermediary or negotiation activity or by making a digital platform available, to the rental of furnished premises subject to II of article L. 324-1-1 and articles L. 631-7 et seq. of the Code de la Construction et de l’Habitation (Construction and Housing Code) publishes his or her declaration number, obtained pursuant to II of article L. 324-1-1 of the present code, in the advertisement relating to the premises.
It ensures that the accommodation offered for rent or sublet is not rented for more than one hundred and twenty days per year through its intermediary when the accommodation constitutes the principal residence of the lessor within the meaning of article 2 of the aforementioned law n° 89-462 of July 6, 1989. To this end, when it is aware of this, it counts the number of nights occupied and informs the municipality of the rented accommodation annually, at its request. Beyond one hundred and twenty days of renting, the accommodation can no longer be the object of a rental offer through its intermediary until the end of the current year.
III. – The methods of control and of sanction to the failures to the obligations envisaged by the II of the present article are fixed by decree”.
The Court had then noted that :
– the platform had not informed its host of its obligations ;
– the platform did not justify having obtained a declaration on honour from its host;
– the accommodation had been sublet for more than 120 days per year;
– the platform had not made any annual statement;
– the platform had been alerted to the illegal ad and had not removed it.
The District Court then concluded that:
“The AIRBNB Company has unquestionably failed in its legal obligations and has provided Mr. L with the means to free himself from his contractual obligations without the latter’s illicit actions being such as to exclude its own liability. Moreover, with a certain amount of bad faith and perhaps in collusion with Mr. L, it allowed the breaches to continue.
On the basis of Articles 1240 and 1241 of the Civil Code, the platform was ordered to pay €3,000 in compensation for moral damages, €1,664.86 for material damages, €1,869.07 for the restitution of royalties received, €1,500 under Article 700 in addition to costs.
The platform did not appeal this judgment which is final and irrevocable.