The answer to this question will depend on the state you are in…
Overview
NSW introduced laws imposing new obligations on booking platforms, hosts, letting agents and guests on 18 December 2020 with a mandatory Code of Conduct for the Short-term Rental Accommodation Industry.
There is also a Short-Term Rental (STR) accommodation premises register which becomes compulsory on 1 November 2021 to be a registered Host.
In Queensland, Body Corporates cannot stop or restrict STR.
While the Body Corporate oversees and maintains the common property and parts of a lot, it will not be able to dictate how owners choose to let out their buildings in the short term.
Airbnb and STR rentals impact tourism in a positive manner, so the state government has outlined the responsibility to govern is with local councils. This is supported by the Body Corporate and Community Management Act 1997 (BCCMA) Subsection 180(3) which states that if a lot may be used for residential purposes, the by-laws cannot restrict the type of residential use to which it is put.
Legal Precedents
The current position under the BCCMA is that STR &/or holiday letting is:
- a type of residential use; and
- a form of a lease,
that cannot be prevented or restricted by a by-law under the BCCMA.~ Body Corporate for Hilton Park v Robertson [2018] QCATA 168 (Hilton Park).
However, on 18 October 2019, the Magistrates Court at Southport approved a by-law that allowed a scheme to prohibit short STR.
At the time, that decision was largely confined to schemes established and governed by the Building Units and Group Titles Act 1980 (BUGTA), meaning it applied to about 1% of all schemes in QLD. ~ Fairway Island GTP v Redman and Murray [2019]
In that case, the District Court of Queensland upheld the validity of a by-law that restricted the use of a lot for a rental period of less than one month.
His Honour Judge Barlow QC found that:
“Short-term use of a house by holiday makers or other persons seeking short-term accommodation is different from longer term residential use, even though it may be difficult to draw a clear dividing line. In its ordinary meaning, to use a building for a residential purpose does not include using it for the purpose of letting it out to others (and those others using it) for holidays or other temporary accommodation.”
Summary
At least for now, 99% of QLD Bodies Corporate cannot restrict STR’s by imposing by-laws.
However, Body Corporates can implement targeted by-laws to better regulate the behaviour of occupiers in common areas…
For example: If the swimming pool is being used by holiday makers until all hours of the night, it could create a by-law to regulate the opening and closing time of the swimming pool and place a lock on the gate. If people are abusing the right to use the BBQ areas, it could create a by-law to prohibit the use of glass and create a booking system to better manage the use of the facility.
2032 will see Queensland host the Olympic & Paralympic Games & will rely on STR accommodation to host the huge amount of tourism that it will bring.
In 2019, the Department of the Premier and Cabinet submitted their Value Proposition Assessment with the assessment showing Queensland can meet the requirements through a range of options including hotels, serviced apartments and Airbnb, which is now a worldwide Olympic Partner (through to 2028).
If you are considering STR for your investment property… contact us for more info!
