Airbnb in Turkey: Legal Perspective

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What is Airbnb?

Serving with the slogan “Home Hotel Management”, Airbnb is an online platform that brings together people who need short-term accommodation and people who want to rent their house or a part of their house for a short time. It operates in more than 100,000 cities in 220 countries, with more than 150 million members by 2023. Airbnb started its presence in the Turkish market in 2010 with 76 houses, and by 2023 there will be more than 50 thousand houses available for accommodation. 53% of users prefer Airbnb because it is more convenient than hotel services. [one]

Airbnb is an application that brings together hosts and guests and receives commission from transactions made within the scope of the meeting service. In this context, homeowners notify the application of available houses and house parts, list them to people who want to stay, and a commission is received if a contract is established.

Legal Repercussions of Airbnb Applications Around the World

Airbnb provides services in many different countries and different cities. It constitutes a great source of income for the city’s residents, especially in cities that attract tourists such as New York, Barcelona and Paris, and it also reduces the cost of the trip for the tourists. Airbnb is subject to many legal regulations with its widespread service network. In this context, it has been subject to some legal sanctions since it started providing services. Since the legal nature of the Airbnb application in Turkey is a matter of debate, examining its legal reflections in the world will add perspective to the study.

The administration of the Catalonia region, where the city of Barcelona is located, fined Airbnb 30,000 Euros in 2014 for not complying with local rules. [2] This fine was imposed on 7-8 other hosting sites along with Airbnb. The reason for the fine is that the Catalan administration is obliged to register each tourist staying in the city with the Catalonia Tourism Administration. In 2016, the Catalan administration imposed a fine of nearly 600,000 Euros in total because Airbnb listed buildings that were not licensed. [3]

In 2021, the Catalan administration introduced a regulation that largely prevents short-term rental companies such as Airbnb, and individuals are prohibited from renting part or all of their homes for a short time. [4] Within the scope of the ban, a fine is imposed on the landlord for rentals of less than 1 month. Within the scope of the ban, it was stated that there were more than 7,000 hosts breaking the rules in the city center due to cooperation with Airbnb. Among the reasons for this ban, it was stated that the housing needs of the city were not met and the rents in the city were at the ceiling with such special short-term rentals. Additionally, the reason for the ban is that tourists want to be kept under registration in the city.

New York City is one of the cities flocked by foreign tourists. The city government’s attitude towards Airbnb and similar applications continues to harden. More than 29,000 short-term rental addresses are listed, but a third of them are considered illegal under New York law. According to New York law, it is illegal to rent a house for less than thirty days without the presence of a landlord. Airbnb also had its share of this and was fined $ 8.9 million by the city government in 2021. It is stated that $170,000 was accumulated on just one property. As of July 2023, some regulations will be introduced for short-term rentals. In this context, those who want to rent their homes through Airbnb and similar applications will need to obtain permission from the city administration and a business license. Companies,[5]

Portugal is also one of the countries planning to introduce regulations against applications such as Airbnb. A housing crisis arises in old settlements because homeowners in old city centers that attract tourists rent it to tourists as a more profitable rental option, rather than renting it to citizens of the country. While the country’s citizens continue to need housing, applications such as Airbnb, which rents to foreigners, are more prominent in such city centers. One of the regulations considered to reduce the housing need in the old settlements of Portugal, such as Lisbon and Porto, is to make short-term private house rental conditions more difficult and to increase taxes on this item. [6]

The Nature of Airbnb Rentals in Turkish Law

There is no regulation or jurisprudence in Turkish law against applications such as Airbnb. However, since some features in the operation of the application are similar to the situations foreseen in the current legal legislation, it may be possible to place it in a general position. The features of Airbnb that need to be examined within the scope of its legal aspect are as follows:

• • • Existence of tenant-lessor relationship
    • Existence of a short-term rental relationship
    • The lessor has a profit motive
    • The lessor sometimes puts the whole house, sometimes a part of the house, into use
    • The lessor must keep the real estate ready for rental at all times.

Airbnb Rentals Within the Framework of Law of Obligations

When Airbnb rentals are taken into consideration within the framework of the Turkish Code of Obligations (TBK), it will be discussed whether the Airbnb application is more suitable for the rental agreement within the scope of the activity carried out or whether it is within the scope of a kind of accommodation agreement.

In the articles where the TBK regulates the provisions of lease agreements, the law system is divided into two: general provisions of lease agreements and special provisions applicable to residential and roofed workplace leases. When we look at the Airbnb application within the scope of the special provisions of the rental agreement, it will be seen that the regulations that will be applied to residential and roofed workplace rentals will not apply to Airbnb. Because Article 339 of the Turkish Code of Obligations regulates that these provisions will not apply if immovable properties that are designated for temporary use due to their nature are rented for six months or less [7] .

Immovable properties that are reserved for temporary use due to their nature are not specified in the law. However, examples of these properties are given in the justification of the article [8] . Summer houses, hotel rooms, motels, hostels and similar places were counted by sampling method as immovable properties that are reserved for temporary use due to their nature. In addition to being compatible with its features and competing with the hotel market, Airbnb rental is similar to the hotel room rental service.

In the doctrine, there are those who interpret the contract concluded in immovable properties that are designated for temporary use, such as hotels, motels, hostels, holiday villages, as an accommodation contract. [9]

One of the types of contracts that should be examined within the scope of the service offered by Airbnb is the accommodation contract. Accommodation contract is a contract between the host and the host, in which the accommodation fee is stipulated in return for the basic act of accommodation; These are contracts in which the person providing accommodation can be a party to the contract instead of the person staying in the contract. The formation of the contract is stated in Article 44 of the Regulation on the Relations of Tourism Enterprises with the Ministry, Each Other and Their Customers (TİBBMİHY). According to this article, the contract is deemed to have been established when the hotelier accepts that he has made a reservation upon a request made by the customer or on his behalf [10] .

The primary obligation of hotel businesses providing accommodation services in the accommodation service contract is the delivery and use of the hotel room to the guest in accordance with the contract [11] . The exact scope of this obligation is regulated in Article 47 of TIBBMİHY. According to the regulation, the customer has the right to stay in the place reserved for him, to benefit from the facilities and other services of the hotel [12] . Since hotels that provide accommodation services are in the service provision category, they cannot refrain from providing services without a justified reason, in accordance with the 2nd paragraph of the 2nd article of the Law on Consumer Protection (TKHK).

In accommodation contracts, the primary obligation of the stayer is the obligation to pay the price. While the phrase hotel expenses is used in the Code of Obligations No. 818, the phrase accommodation fee is deemed appropriate in Article 147 of the new Code of Obligations. [13] Payment of the accommodation fee must be made primarily by the accommodator. However, it is also possible for the accommodator to make the payment.

Disputes That May Occur Within the Scope of TBK in Airbnb Rentals

Airbnb application allows people to rent a house to a foreigner and receive a certain amount of money in return. As a result of this activity, some legal consequences arise. If a real estate owner rents through the Airbnb application, the legal qualification of the act is important in terms of covering the rights of the lessor. If the contract is qualified as a rental contract, the provisions of the TCO may be applied in any legal dispute. However, if it is considered an accommodation contract, the lessor will be considered a consumer according to the provisions of the TKHK and will be able to benefit from the regulations that protect the consumer.

If a real estate is rented and the tenant rents an Airbnb in his/her residence, two options arise:

1. 1. 1. Assuming that the Airbnb rental is considered as an ordinary rental agreement and a sublease agreement is made.
      2. Assuming that an Airbnb rental is considered an accommodation contract and generates commercial income

According to the regulation of the Turkish Code of Obligations, sublease agreements in residential and roofed workplace rentals can only be made with the written consent of the lessor. Therefore, if the tenant receives written consent from the lessor, there will be no legal dispute. Assuming that the tenant is making commercial profits, a dispute may arise due to the tenant’s breach of contract. If the real estate is designated for residential use in the lease agreement, the lessor who violates the contract may request correction if the tenant makes commercial profit.

In each of the options of renting the house to others via Airbnb, the tenant comes face to face with the lessor. Because, there is a ban on sublease when accepting a sublease agreement, and a ban on misuse in the case of commercial gain. Article 299 of the TBK, which regulates the lease agreement, regulates that the use and enjoyment of the leased thing can be transferred to the tenant. If the tenant tries to make a profit by showing his presence on platforms such as Airbnb, it is useful to include the element of benefiting from the rented property in the contract.

Airbnb Rentals Within the Framework of the Identification Law

One of the laws that regulate daily rental houses is the Identity Notification Law and its implementation regulation. In this context, guests staying in daily rented houses are obliged to notify the competent authorities. The scope of the regulation is similar to the perspective of local governments in some of the cities examined above around the world regarding the Airbnb application due to security reasons.

The Identity Notification Law No. 5115 and the Regulation on the Implementation of the Identity Notification Law include the provisions regarding notification to the government unit assigned by the regulation, regardless of whether temporary/permanent accommodations are paid or free of charge. The phrase “daily rented houses” was added to the 6th article of this regulation on 17/6/2022. The title of the article is “Obligation to Start Work”. According to the scope of the article, it is mandatory for there to be a responsible operator who can be reached at any time in places that provide hosting services such as hotels, motels, inns, bachelor rooms, including daily rental houses. [14]

Daily rental houses are recognized in paragraph c of Article 3 of the Regulation. This definition defined the actual use of the real estate and showed the scope of Airbnb rentals within the framework of the regulation. Within the scope of the regulation, if the house rented for the day is “de facto operated as a workplace rather than being used as a residence or rented for use as a residence”, these houses will have the status of a house rented for the day within the scope of the regulation and will be subject to the operating rules. [15]

Airbnb Rentals Within the Framework of Tax Law

Another view of Airbnb rentals arises in terms of determining tax liability in the context of tax law. The basis for real estate leases is regulated in the first paragraph of the 70th article of the Income Tax Law (Income Tax Law (Income Tax Law) [16] ; The income obtained from the owners of absolute or limited real rights from renting the real estate is evaluated as real estate capital income. However, in some cases, the income obtained from real estate must be considered as commercial income and its taxation must be calculated in accordance with the commercial income provisions. Commercial income is defined in Income Tax Law article 37 and it is stated that “Profits arising from all kinds of commercial and industrial activities are commercial income”.

Although there is no detailed review of the Revenue Administration and the legislation regarding Airbnb rentals, Airbnb rentals can be evaluated based on situations similar to the nature of Airbnb rentals. The Revenue Administration publishes rulings on situations that taxpayers have difficulty detecting in practice. In these rulings, some taxpayers requested the institution to determine whether their earnings were real estate capital income or commercial income. It would be useful to examine a ruling of the institution dated 24.09.2018 on this subject. [17]

In the ruling, a taxpayer;

• • • In a building with independent residential flats
    • To establish a rental agreement for not less than ten days
    • With fixtures
    • The tenant’s daily needs such as cooking and cleaning are not organized.
    • Of these immovable properties that are not registered in the self-employment receipt

He requested to determine whether the income obtained was commercial income or real estate capital income.

As a result of the investigation carried out by the Revenue Administration within the scope of Articles 37 and 70 of the Income Tax Law No. 193, even if a lease is issued and given to the lessors;

• • • In order to generate more income than renting for a long time
    • Making real estate available for rental by different persons on a permanent basis
    • It requires an organization to make the house ready again between different people leaving the house and handing over the house to the other person.

It has been concluded that rental transactions made for the following reasons should be treated as commercial income. The same findings were also included in other rulings [18] . While determining whether the established lease agreement is within the scope of real estate capital income or serves a commercial purpose, the Institution made some determinations by evaluating the taxpayer’s activity based on its differences from the ordinary lease agreement.

When compared to the features of Airbnb rentals, it will be seen that there are some similarities with the criteria set by the institution. Airbnb rentals offer less cost for tourists coming to the city compared to touristic establishments such as hotels and hostels. However, when looking at other house rents in the city where the real estate is located, it will be seen that the home owner will earn less income if he rents the same real estate as a normal rental agreement.

The person who allocates his real estate or part of the real estate to the application guest through Airbnb aims to offer the real estate in question to as many guests as possible, not to a single guest. Assuming that the person renting through the application does not do this continuously, it can be considered as commercial income since it will be evaluated within the framework of the activity aimed at avoiding the responsibility of renting for a long time. Because, although the income of the person who allocates the real estate for use through the application allocates that independent section to a permanent rental relationship, his income will decrease, and his savings regarding the use and eviction of the tenant from the real estate will be limited within the framework of legal solutions.

CONCLUSION

Airbnb is an application where individuals rent their excess residences or the excess part of their residences today, when the sharing economy is developing. By bringing together the host and the people who want to stay, the application enables the host to make a profit, and the person who wants to stay to get rid of the excess expenses he would have to pay if he stayed in places such as hotels or hostels. Airbnb, which has established its application network with thousands of hosts in Turkey, is an application that is not directly regulated or subject to jurisdiction because it is new.

Around the world, Airbnb has become more common in tourist cities such as New York, Barcelona and Lisbon. It has become the choice of tourists who avoid hotel expenses in cities where tourists come in droves. As examined at the beginning of the study, Airbnb, which is widespread around the world, has faced many restrictions, fines and will continue to be subject to prohibitive regulations. When examined on an international level, the reasons for restricting Airbnb appear as follows:

1. 1. 1. In accordance with the tourism legislation, notification of tourists coming to the city is made in businesses integrated with the administrative system such as hotels and hostels, while there is no such integration in the Airbnb system. For this reason, the number of tourists staying illegally in the city is increasing.
      2. In old city settlements, individuals tend to turn to short-term tourist rentals rather than long-term residential rentals. For this reason, as there is an increase in rents and a housing crisis in cities, attempts have been made to prevent rentals such as Airbnb.

With the emergence of these problems, some precautions were taken by the administrations. These measures can be compiled as follows:

1. 1. 1. Sites and hosting providers such as Airbnb have been fined.
      2. House rentals for periods of less than one month are prohibited, regardless of the whole or part of the house; Administrative fines are imposed within the scope of the ban.
      3. It is prohibited to rent a house or part of a house for more than thirty days without the owner.
      4. Landlords who want to rent short-term will have to obtain licensing. If they do not license, booking intermediary companies such as Airbnb will not be able to receive commission.
      5. It is considered to make the conditions for short-term rentals more difficult and to increase the tax burden.

When the perspective and sanctions against Airbnb are examined around the world, it is seen that short-term rentals have stricter attitudes compared to long-term rentals and are going through an evolution process that is not left completely under the control of the hosts. The presence of guests staying unregistered is generally seen as a security problem by local authorities.

When the Turkish legal legislation is examined in detail within the scope of the Turkish Code of Obligations, the Law on Consumer Protection, the Identity Declaration Law, the Income Tax Law, the Regulation on the Relations of Tourism Establishments with the Ministry, Each Other and Their Customers, and the Regulation on the Implementation of the Identity Declaration Law, the legislator’s decision to implement applications that provide daily rental opportunities such as Airbnb. point of view has been tried to be expressed. The results presented in this context are as follows:

1. 1. 1. Within the scope of the TBK, places where daily rental is made are defined as buildings reserved for temporary use due to their nature; Rentals made in places such as hotels, motels and hostels are considered as rental agreements in the doctrine. The prominent perspective in these regulations is “a structure that is specific to temporary use due to its nature”.
      2. With the statement added in 2022 within the scope of the Identity Notification Law, the obligation of homeowners to start work if they provide daily house rental services is envisaged and an operator who can be reached by the authorities is obliged to notify the competent authority. In these arrangements, it does not matter whether the person shares his or her home partially or rents it out free of charge. The prominent perspective in these regulations is “to be operated as a business rather than being used as a residence or rented for use as a residence”.
      3. When the rulings of the Revenue Administration, which provide a perspective on the implementation of the ITL, are examined, a determination has been made as to whether daily rental transactions are real estate capital income or commercial income. The rulings reveal which situations are immovable capital income and which situations are commercial income by evaluating certain issues. The prominent perspective in these rulings is “to obtain more income from long-term rentals, to keep it available for rental purposes to different people on a continuous basis, and to organize an organization while making it available to different people.”

When all these issues are examined together, it will be concluded that a contract between individuals through Airbnb cannot be considered as a rental contract. When the real estates put into service through Airbnb are evaluated from the perspectives of the legislator summarized above, the following picture emerges:

1. 1. 1. By their nature, they are structures specific to temporary use.
      2. It is not used as a residence during its use.
      3. It aims to generate more income from long-term rentals.
      4. There is always preparation for renting to different people and an organization is required while carrying out this preparation.

Contracts established through Airbnb should be considered as accommodation contracts. When the relevant articles of TİBBMİHY are examined, it will be seen that, as a result of rentals made through Airbnb, the host has certain obligations, the primary act of which is accommodation, just like the hotel owner who provides accommodation services. In addition, the establishment of a contract between the host and the host is similar to the reservation regulation in the relevant regulation; Once the reservation request is approved by the host, the contract is established. Another obligation for contracts established within the scope of Airbnb to be accepted as accommodation contracts is within the scope of the TKHK.

In addition, people who stay pay for their accommodation to the Airbnb application, not to the host. This payment also includes the commission fee of the Airbnb application. Landlords notify the Airbnb application of available real estate, and list these real estate to people who want to stay on Airbnb as an accommodation provider. Although Airbnb has certain limits in case of disputes, it also has a liability agreement. The application is more than just a platform where those who provide accommodation services and those who want to buy them meet, it acts as an intermediary, close to providing accommodation.

In the light of the evaluations made, seeing daily rental services within the scope of Airbnb as accommodation contracts and qualifying the host as the accommodator, the customer as the accommodator, and the Airbnb application as the accommodator will be a solution to the problems that will arise until a direct regulation is made for platforms such as Airbnb.