2018 has been an eventful year for Airbnb regulations in Australia….
- Sydney introduced a 180 cap on Airbnb and will give strata corporations the power to ban Airbnb in their buildings. ….
- The Sunshine Coast Council will introduce a new levy with their rates notices, for providing short-term accommodation through websites including Airbnb, starting at $387.
In November 2018, QCAT (Queensland Civil and Administrative Tribunal) considered short term letting by-laws & passed down their judgement….
The whole argument about short-term letting in Queensland strata law hinges on section 180(3) of the BCCM Act. Adjudicators have been very consistent in their interpretation of that so far as it relates to whether short-term letting is a residential use. The QCAT matter was an appeal by a body corporate about a decision made by an adjudicator in Hilton Park. That decision was consistent with previous rulings that said abody corporate could do nothing to restrict short-term letting under its by-laws.
The body corporate’s arguments were relatively novel, which makes the decision all the more interesting. The keys sections of the BCCM Act that were considered were 180(3) and 1980(4). These are;
- If a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use.
- A by-law cannot prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.
The body corporate argued that the use letting of a lot (be that for short or long term) was a commercial purpose, not a residential one. If that was the case, the body corporate was not prevented from being able to regulate the use of the lot in terms of having a minimum length of tenancy (which was proposed as six months, which therefore killed off any short-term letting).
The Commercial Module applies where the lots in the scheme are predominantly commercial lots, which means a lot which is:-
- Used for commercial (including retail) or industrial purposes; and
- Not an accommodation lot or a residential lot.
A residential lot is a lot which is used for residential purposes, whether or not the lot is also an ‘accommodation lot’. An ‘accommodation lot’ means a lot that is either or both of the following;
- the subject of a lease or letting for accommodation for long or short term residential purposes…, or
- part of a hotel
So, the government has seemingly referenced that the intentions for ‘commercial’ are retail or industrial-type purposes (which would also include office use) but that residential lots can be let for both short and long-term purposes. When someone lets their unit, whether short or long term, they generally give away exclusive possession of it for the period of the tenancy.
Section 180(4) prevents a by-law from preventing or restricting a dealing with a lot. The grant of a lease (be it for one day or 12 months) is a dealing. The BCCM Act prevents a body corporate from interfering with that dealing – in which setting a minimum length of tenancy in place would be. Like it or not, the only place these issues regarding short-term letting can be resolved is with the local authority and their planning rules.You can read the decision here. Article Source: Hynes Legal (Brisbane)