ABSTRACT
Airbnb is one of the most disruptive companies in the ‘Sharing Economy’. Its business model is built upon a triangular structure of legal relationships that remains poorly understood and inadequately analysed in terms of legal classification. This article examines the issue of legal categorisation vis-à-vis the relationship between the Airbnb host and the Airbnb guest. Focusing on the common law distinction between leases and licences, this article re-evaluates the analysis of the lease-licence dichotomy in the context of Airbnb. It argues that the elements of possession — physical control (factum possessionis) and relevant intention (animus possidendi) — should be considered in the lease-license analysis. With this normative claim, this article concludes that contrary to the decision in Swan v Uecker, the contractual arrangement between the Airbnb host and the Airbnb guest should be categorised as a licence relationship, rather than a lease.
Diaz-Granados, Juan, Exclusive Possession, ‘Contractualisation’ and the Lease-Licence Dichotomy: A Reconsideration of Legal Categorisation in the Airbnb Era (October 16, 2024), Adelaide Law Review 250, Volume 45, No 2 (2024).
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