19 Replies Latest reply: May 15, 2019 9:31 AM by wildiris RSS

    Your own contract supersedes the OTA contract

    margaret CommunityAmbassador

      This is an interesting read. The owner is a member of another group I follow, the owner gave permission to repost.

       

      Update on my court case
      Summit County Colorado Case number 2019C001

      I am posting this as a new thread as the original thread has over 1500 comments and post discussing on judge point's of view, ruling etc would be difficult to find.

      Summary of the case:
      I had a guest who booked a stay through AirBnB, claimed to be just one occupant and asked for a discounted rate based on low occupancy. Upon arrival, she checked in with additional occupants and continued to violate initial terms of the contract. I tried to mitigate the situation to no avail. Guest was subsequently asked to leave early. AirBnB refunded unused time spent despite the no refund stated in the contract. AirBnB also blocked my listings and prevented me from accepting additional bookings due to the current litigation with the guest.

      I filed a 3 days notice to quit asking the guest to vacate the property. Guest refused to vacate even though AirBnB issued a refund. I followed up and filed a FED (forcible entry and detainer = eviction). Guest and unauthorized guests eventually left the property after being served with FED by the local sheriff department.
      The judge heard the case in court on April 1 and took a month to issue a ruling. Ruling is as follows:

      May 12,2019: The judge has issued a ruling. See full rulings attached.

      This is what there is to learn from my ordeal:
      1) Your own contract supersedes the OTA contract. The airbnb contract was not recognized by the judge and was useless.

      2) Your contract must be clear, address anything that you are attempting to enforce, must contain clean amount of $ for damages and must establish that it was understood and accepted by the guest.
      3) Once in court, your job is to present your case and prove every point with written documentation.
      A checkmark on a box next to "I agree to the rules" on an OTA website IS NOT ENOUGH to prove your case.

      4) mitigation is VERY important. Mitigating damages will help you win!

      I had a contract that was signed by the guest and each page was also initialed by the guest.

      I had a good care deposit and a credit card authorization form authorizing me to charge for damages.

      My contract adequately proved the maximum number of guests allowed; in my case, one guest was authorized to stay. The contract also proved that it was understood by all parties. The guest as well as the third party both initialed every page of the contract.

      The contract failed to address clear damages in the event the guest violates the terms of the contract. The contract wording stated that a fine of $500.00 was to be assessed and that guests were asked to leave without compensation should a violation occur. My contract didn't address however what would happen if the guests didn't leave. Because of this, my damage for contract violation was limited to $500.00.
      My contract also didnt' address what would happen would the length contract be shortened due to a violation (sales tax, lodging tax requirement, etc)

      The judge agreed that the guest violated the contract, brought in additional unauthorized guests, and that I had the right to ask her to vacate the property early.

      The judge agreed that the guest remained responsible for the full contract including a $500.00 fine and court fees.

      The judge found that the guest tampered with the video recording but found no validity to the guest's claim that video cameras were located inside the unit. (I only have a ring door bell pointing away from the front door)

      The judge didn't find me guilty of criminal tampering for changing the access code. The police officer who accompanied me to the unit initially encouraged me to change the code and block access to the unit. I did change it initially but a few minutes later, I reactivated the code and therefore didn't prevent the guest from accessing the unit.
      Not sure what the judge would have decided had I blocked access. Maybe I would have lost my case or would have been fined.

      The judge awarded the following damages:
      Full contract, $500.00 for additional guests, Cleaning cost.

      The judge recognized that I attempted to mitigate the situation along the way and applied the amount collected by my efforts to re-rent toward the awarded damages, effectively reducing the amount due by the guest.

      The judge also confirmed that collecting a good care deposit and credit card information and approval to charge from a third party was valid and applied the good care deposit collected that way toward the damages owed.