Exclusive Possession, “Contractualisation” and the Lease-Licence Dichotomy : A Reconsideration of Legal Categorisation in the Airbnb Era

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-a-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.

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