3. TODAYS TOPIC
“Is putting your unit on Airbnb allowed or is it running a business from your unit?”
Delving into what’s allowed and what’s not and the need for precision in Conduct Rules.

4. QUALIFYING THE TOPIC Qualification 1
Todays discussion applies to residential schemes and not retail, commercial or industrial schemes.
Qualification 2
Todays discussion applies only if Airbnb is considered a business in the normal sense of the word used in rules in schemes (since the core service of Airbnb is accommodation and not another category i.e. manufacturing or retail).
We will assume for now that Airbnb is considered a business…

5. 2 SCENARIOS
Scenario 1
The Prescribed Conduct Rules apply to the Scheme.
Scenario 2
The Conduct Rules have been amended and detail if a business may or may not be run from a unit and if it can, in what circumstances and how.

6. SCENARIO 1 The Prescribed Conduct Rules apply to the Scheme.
The Prescribed Conduct Rules do NOT contain any provisions allowing or outlawing running a business from a unit.
The schemes respite if any falls solely on the Act and the Prescribed Management Rules ‘PMR’.

7. SCENARIO 2 The Prescribed Conduct Rules have been amended.
The Prescribed Conduct Rules detail if a business may or may not be run from a unit and if it can, in what circumstances and how.
The schemes respite if any falls on the Amended Conduct Rules, on the Act and on the PMR’s

8. WHAT ABOUT THE ACT (Does it help?)
Section 13 (1) (e)
Using a unit in a manner or for a purpose which may cause a nuisance.
Section 13 (1) (f)
Notifying the Body Corporate of a change of occupancy.
Section 13 (1) (g)
Not use a unit contrary to the intention shown on the sectional plan.

9. Duties of owners
13. (1) An owner must—
(a) permit any person authorized in writing by the body corporate, during reasonable hours and on notice (except in case of emergency, when no notice is required), to enter his or her section or exclusive use area for the purposes of inspecting it and maintaining, repairing or renewing pipes, wires, cables and ducts existing in the section and capable of being used in connection with the enjoyment of any other section or common property, or for the purpose of ensuring that this Act and the rules are being observed;
(b) forthwith carry out all work that may be ordered by any competent authority in respect of his or her section, other than such work as may be required for the benefit of the building generally, and pay all charges, expenses and assessments that may be payable in respect of his or her section;
(c) repair and maintain his or her section in a state of good repair and, in respect of an exclusive use area, keep it in a clean and neat condition;
(d) use and enjoy the common property in such a manner as not to interfere unreasonably with the use and enjoyment thereof by other owners or other persons lawfully on the premises;
(e) not use his or her section or exclusive use area, or permit it to be used, in a manner or for a purpose which may cause a nuisance to any occupier of a section;
(f) notify the body corporate forthwith of any change of ownership or occupancy in his or her section and of any mortgage; and
(g) when the purpose for which a section or exclusive use area is intended to be used is shown expressly or by implication on or by a registered sectional plan, not use nor permit such section or exclusive use area to be used for any other purpose: Provided that with the written consent of all owners such section or exclusive use area may be used for that purpose as consented to.
(2) Any owner who is of the opinion that any refusal of consent of another owner in terms of the proviso to subsection (1)(g) is unfairly prejudicial, unjust or inequitable to him or her, may, within six weeks after the date of such a refusal, make an application in terms of this subsection to an ombud.

10. WHAT ABOUT THE PMR’s (Do they help?)
PMR 27 (2) (b)
The Body Corporate must prepare and update a list of tenant details.
PMR 30 (c)
An owner/occupier must not contravene:
law/by-law relating to the use of the unit;
conditions of a license relating to the use of the building or the carrying on of a business in the building;
conditions of title applicable to units.
PMR 30 (f)
Not use a unit for a purpose other than for its intended use shown on:
the sectional plan or approved building plan;
by inference from the town planning by-laws or rules of the Body Corporate;
The construction layout and available amenities.

11. PMR 27 (2) (b)
(2) The body corporate must prepare and update the following records-
   (a)    minutes of general and trustee meetings, including the following information-
      (i)   the date, time and place of the meeting;
     (ii)   the names and role of the persons present, including details of the authorisation of proxies or other representative;
     (iii)   the text of all resolutions; and
     (iv)   the results of the voting on all motions;
   (b)    lists of trustees, members and tenants with their-
      (i)   full names;
     (ii)   identity numbers or, in the case of non-South African citizens, their passport numbers; and
     (iii)  section addresses and mailing addresses, if different;
    (iv)   telephone numbers; and
     (v)    or other electronic addresses, if any;

12. PMR 30  Use of sections and common property
The body corporate must take all reasonable steps to ensure that a member or any other occupier of a section or exclusive use area does not-
(c)    contravene the provisions of any-
      (i)    law or by-law relating to the use of a section or an exclusive use area; or
     (ii)    conditions of a license relating to use of the building or the property, or the carrying on of a business in the building; or
     (iii)   conditions of title applicable to sections or exclusive use areas;
(f)     subject to the provisions of section 13(1)(g) of the Act, use a section or exclusive use area for a purpose other than for its intended use as-
      (i)    shown expressly or by implication on a registered sectional plan or an approved building plan;
     (ii)    can reasonably be inferred from the provisions of the applicable town planning by-laws or the rules of the body corporate; or
     (iii)   is obvious from its construction, layout and available amenities;

13. TO SUMMARIZE
If the Trustees/Owners, wish to outlaw Airbnb, then amend the Conduct Rules to provide for same i.e. to provide for minimum stays of tenants/guests for example a 30 day period. PROVIDE PRECISION IN ALL RESPECTS.
If the Trustees/Owners haven't amended the conduct Rules, help is still available. The Act prevents a nuisance and implies that residential units are not meant to fulfil a hotel purpose or for ultra short term accommodation

14. The most help is available from PMR 30 (c)
An owner/occupier must not contravene a law/by-law relating to the use of the unit, conditions of a license relating to the use of the building or the carrying on of a business in the building, conditions of title applicable to units.

15. Before ending, lets go back to the beginning, Is Airbnb a business?
REPEAT OF SLIDE 4
QUALIFYING THE TOPIC
Qualification 1
Todays discussion applies to residential schemes and not retail, commercial or industrial schemes.
Qualification 2
Todays discussion applies only if Airbnb is considered a business in the normal sense of the word used in rules in schemes (since the core service of Airbnb is accommodation and not another category i.e. manufacturing or retail).
We will assume for now that Airbnb is considered a business…

16. IN CONCLUSION
A business is an organization or enterprising entity engaged in commercial, industrial or professional activities
It makes the most sense to say that it is business itself which does not belong in a residential scheme, a place of respite and real living.
It doesn't make much of a difference if the business offers accommodation like Airbnb. But it does confuse things
The point is the carrying on of the business does not belong in a place of respite and real living.
Unless as we said before the rules are amended with exact precision in all respects and the minimum period of occupancy for concepts such as Airbnb are made to be 30 or 60 days.