CHUMMED BY A HOLIDAY ACCOMMODATION SCAM – DO I HAVE A LIFELINE?
Riette van der Merwe
28 February 2019
You are online browsing the world wide web in hot pursuit of the ideal holiday accommodation, and behold, you hit the bargain of the year – a spacious beachfront house with a beautiful view of the sun setting over the Atlantic Ocean. Even better than the features of the house, is the price! You make payment of the required deposit with a song in your heart, a song which comes to an abrupt end months later when you arrive at what you thought was the ideal breakaway destination. “There must be a mistake” you think to yourself…it’s a shabby apartment on the outskirts of town, with a view of the harbour.
You’ve probably fallen victim to one of a plethora of the trending online scams: holiday accommodation of which the characteristics or amenities indicated online are either inflated and/or fabricated. The question thus begs: “Do our law provide you with some form of relief?”
The answer is “yes”; the basis of your relief may however depend on whether the person/entity providing you with the accommodation (referred to as “supplier”) does so “in the ordinary course of its/their business”, such as a guesthouse owner or a residence bought with the sole or primary intent of leasing same to potential guests. Under these circumstances the Consumer Protection Act (“CPA”) will be your rescue buoy.
In terms of the CPA, a supplier is prohibited from making false, misleading or deceptive representations concerning a material fact in its marketing, which include the failure to correct an apparent misapprehension on your part. It is important to note that the misleading marketing must relate to a material fact, such as the accommodation being walking distance from the beach. In such event you can approach a Court which has the power to make a finding it deems just and reasonable under the circumstances. The foregoing includes an order compelling the defaulting party to refund all the monies paid by you together with an order requiring it to compensate you for the consequential loss or expenses incurred by yourself.
If the supplier does not provide accommodation in the ordinary course its/their business, you would not be able to rely on the CPA. You would however not necessarily be without a remedy and may have recourse to the South African common law which inhibits a contracting party from luring another into a contract by way of a material misrepresentation. Your remedy under the common law is similar to that of the CPA, in that you may claim cancellation of the agreement, a refund of monies paid (as well as the damages you may have suffered. You would however need to prove that the other party had the intention to mislead you (i.e. it was not by mistake that the other party provided you incorrect expectations or information), and that the very same misrepresentation was the bait whichlured you into the booking.
In conclusion, some advice on steering clear of accommodation scams:
- Be wary of accommodation without a history of reviews;
- Perform a Google search on the specific accommodation – there may be previous victims lamenting the fact that they were misled by this very same supplier;
- Search the address of the accommodation using “Google maps street view” to confirm whether same is indeed the property advertised;
- Avoid accommodation of which all photographs are of the exterior of the accommodation;
- If the photographs look like they’ve been taken of 5-star accommodation by a professional photographer, it probably has. Scammers often copy photographs from other websites; and
- Compare the accommodation, its location, amenities and price with others of similar nature. If it does not add up…it may be a predator posing as a house.