Lcan future vacationers who are considering renting a house to private individuals this summer trust the HomeAway commercial, currently broadcast on television channels? It shows families happily taking possession of villas with swimming pools, while a female voiceover assures: “You wouldn’t go on vacation with strangers… So why share your vacation home with them? » The voice says: “What distinguishes an Abritel holiday home? You have the whole house all to yourself…”
Mr. and Mr.me X, they can no longer believe it, and for good reason: on July 28, 2018, after having paid the sum of 5,361 euros, for a two-week stay in a “beautiful bastide, near Luberon, with private swimming pool”, they discover, on the spot, that they will be housed in a barn adjoining the bastide, and that they will have to share the swimming pool with strangers and a dog, an animal to which their son is allergic. The guard who welcomes them warns them that, “to access the swimming pool, it will be necessary to avoid going along the main house, so as not to annoy” its occupants. They prefer to leave and claim their refund.
The renter, M.me Y, playing dead, they ask Abritel to intervene with her. But they come up against a refusal: the Terms of Service of HomeAway, company owner of the Abritel platform, and subsidiary of the American Expedia, specify in fact: “HomeAway will not be a party to the Rental Agreement and (…) has no liability to you for the provision of the rental by the host. As a hosting provider, we do not endorse, support or guarantee in any way the authenticity, accuracy or reliability of the information contained in the advertisements on the site…”
“Independent wing”
The Xs decide, “for principle”, to go to court. Their lawyer, Mr.e Aurélie Kamali-Dolatabadi, sends a formal notice to the renter, who still does not respond, but who modifies her announcement and her photos on Abritel: it is no longer a “beautiful bastide” that she proposes (this one being reserved for her family), but “an independent wing within a beautiful property”. Me Kamali-Dolatabadi forwards the screenshots ” before-after” at the Aix-en-Provence district court (Bouches-du-Rhône).
It argues not only that the rental did not comply with the advertisement, which justifies the cancellation of the contract, but that in addition, the non-compliance was intentional, as evidenced by the modification of the advertisement. In other words, the landlord lied about the property she was renting out, to induce holidaymakers to contract, which characterizes a fraud.
The Aix-en-Provence district court approves this reasoning, on November 8, 2019. He condemns Mme Y to return the rental price, and to pay an additional 500 euros, to repair the “moral damage” suffered by the X, who have “had to urgently modify their holiday program”. Mme Y appeals, but the decision is confirmed, the October 19, 2022. The court of Aix-en-Provence judges that Mme Y “deliberately lied” to the Xs, which, “if they had been aware of the reality of the facts, they would not have contracted”as evidenced by their immediate departure on July 28, 2018.
The world transmitted this decision to HomeAway and asked how it is possible to reconcile advertising for Abritel and general conditions of use which relieve the platform of all responsibility for the content published there.
Here is an excerpt from the response: “The current advertisement and our terms and conditions relate to the accommodation, not the whole property on which the accommodation is located. Sometimes a property may have certain shared spaces like a swimming pool or tennis court, and these items are not a violation of our “a home just for you” policy… Sure, but HomeAway does not verify that this is specified.