AirBnB and the Law

03 Dec 2020 12:00 am

Robert Krautkramer discusses the concept of "transient guests" as contained in the Cape Town Municipal By Law Act and its implications for needing Council's permission to AirBnB.

You own a flat or a house in Cape Town, and want to rent it out as an AirBnB. May you, or do you need Council’s permission, depending on the zoning?

With special thanks ELCO PROP Town Planners for their input, here is the answer:

Changes to the Cape Town Municipal By Law Act at the start of the year introduced a new definition, namely that of “transient guests”.

Many people think that an AirBnB is similar to a guest house, hotel, or bed and breakfast, and then look for answers in the various zoning categories available in the aforesaid By Law, when in fact, it is neither of these. If truth be told, it is alot simpler than you might think.

Allow me to introduce the concept of a “transient guest”. This is defined as “a person who is provided temporary accommodation on a land unit that is not their permanent place of residence, for a continuous period not exceeding 30 consecutive days at a time”.

This is your typical AirBnB guest. So where may this sort of guest reside, without you getting in trouble with the authorities?

The answer lies within the definition of a dwelling unit, which is now defined as “a self-contained, interleading group of rooms, with not more than one kitchen, used for the living accommodation and housing of one family or a maximum of 5 transient guests, together with such outbuildings as are ordinarily used therewith, but does not include domestic staff quarters, or tourist accommodation or accommodation used as part of a hotel”.

Given the above, any dwelling – be it a flat or a house – may be used for a maximum number of five AirBnB guests not staying more than 30 days at a time.

Zoning is irrelevant. The concept of AirBnB is covered by “transient guests”, and has nothing to do with guest houses, bed n breakfast, or hotels. Whether your property is thus zoned as Single Residential 1 or 2, or General Residential 1 or 2, is irrelevant.

So basically, ALL dwellings are allowed to be used as AirBnB now, under this By Law.

That said – WARNING!

It is important to note that one might still require permission from a Body Corporate if the Conduct Rules of a Sectional Scheme require this, or it may be forbidden in such rules, or by the Constitution, of an HOA, should the property be governed by one.

In addition, some insurers of residential Sectional Schemes consider AirBnB enterprises as commercial enterprises, and if they find out that units were being AirBnB’d, they may be entitled to refuse any insurance claims!

AirBnB’s may also add significant risk to security measures in a complex, with new people coming and going, and remotes being handed out left and right.

So please do your homework before you AirBnB your dwelling, or decide to market or buy an investment property with that intention. The mere fact that the By Law has now declared this as “open season”, is not the end of the matter.

Robert Krautkramer
Miltons Matsemela Inc.