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The Rise of Airbnb, Boosted by Regulatory Precariousness

Only a decade ago there were very few travelers in the world who planned their trips without thinking of a hotel. Airbnb was born in San Francisco in 2008 and, pioneer in the field of accommodation based on the concepts of the collaborative economy, has spread and massified until reaching the present times, in which there are very few travelers in the world who plan their trips without thinking of Airbnb.

As with all new things, the Law is late. And not because of bad intentions, but because the institutional creation of laws takes time. This is how, of course, the vast majority of the laws that regulate our civil life were written when these innovations still did not exist.

In fact, since the hotels have existed for centuries while the accommodations offered through Airbnb have nothing more than ten years, only the former have to comply with certain standards - most of them old - and for this they must incur various costs (ratings, infrastructure, licenses, insurance) of which the latter are exempt. This situation puts Airbnb in a clear competitive advantage over hotels. The same that Uber drivers have about taxi drivers. And so it happens, in general, with any innovative platform based on the collaborative economy that reaches the market to compete with established services.

Thus, as a result of the resistance exerted by hotel owners across the globe, we have witnessed state interventions in major cities such as New York, Miami and Barcelona, ​​among others, through the application of, for example, , fines and bans on Airbnb users.

In Buenos Aires there are numerous accommodations offered through this platform and its users make their numbers taking advantage - badly or else, that is another discussion - the advantages that their regulatory precariousness has for them. Precisely, as it is a relatively recent phenomenon of intense massification, it still enjoys the absence of a regulatory system appropriate to its characteristics. To which it is necessary to add that in Argentina it is ingrained custom that the solutions take in arriving, and what is more, when the solutions depend on the laws, they take even more, because although we have the laws, it is very difficult for us to apply and respect them .

At the moment, the only thing that exists in the matter of regulation in this aspect is a norm of the A.F.I.P. [1] - it is worth highlighting, from the date prior to the creation of Airbnb - in which it is foreseen the application of a withholding of the Income Tax on the canons of the temporary rents of real estate, among other activities. And in practice, although it was announced in 2017 that it would begin to govern through withholdings that banks would make [2], the truth is that it is not even applied accurately and efficiently today.

To this must be added another important edge of the problem, the need to regulate the interests of individuals in civil life against phenomena like this. Just to mention a few examples: what happens if the tenant breaches its obligation to return the property to the tenant at the end of their stay; Can the landlord initiate an eviction action? What about the rules that establish a minimum time duration of the lease for real estate for the room? Does the tenant have a contract with the tenant, or does each of them have a separate contract with Airbnb?

In short, there are many questions that appear when conflicts occur. What is certain is that the growth of the collaborative economy is favored and enhanced by regulatory precariousness. It does not seem bad that innovations exist and that economies are dynamic and growing, but it is necessary to protect individuals by creating regulatory policies that tend to guarantee conflicting interests and equal conditions for all economic actors in a way such as to disfavor disloyalty and abuse. There is then a lot of fabric to cut and a long way to go to achieve the necessary conditions for a healthy and balanced market and business relationship.

[1] General Resolution No. 830/2000 of A.F.I.P. Administración Federal de Ingresos Públicos, (Federal Administration of Public Revenue, national tax collection agency in Argentina).

[2] Una mala para Airbnb: desde marzo, se retiene hasta un 28% a los dueños que alquilen en la plataforma. Infobae

 

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Manuel Pérez Taboada's picture

Lawyer graduated from the Faculty of Law and Social Sciences of the University of Buenos Aires, 2008.
He has a Master in Civil Heritage Law from the Catholic University of Argentina, 2016.
Member of the Public Bar Association of the Federal Capital.

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