Queensland strata communities may include both long-term residential and short-term accommodation uses. Airbnb and similar platforms can create issues with noise, parking, overcrowding and shared facilities when permanent residents and short-term visitors have different interests.
Can a body corporate ban short-term letting in Queensland?
Generally, no. A body corporate cannot use its by-laws to ban short-term letting where the lot may lawfully be used for residential purposes.
The Body Corporate and Community Management Act 1997 (Qld), known as the BCCM Act, says that by-laws cannot restrict the type of residential use for a residential lot. They also cannot prevent or restrict a lease or other dealing with a lot. A by-law that is inconsistent with the BCCM Act or another Act is invalid to the extent of that inconsistency.
Short-term accommodation is generally treated as a type of residential use and a form of letting. A by-law therefore cannot simply prohibit an owner from using a residential lot for short-term letting because other owners disagree with that type of occupancy.
A recorded by-law is not automatically valid. The Queensland Government explains that a by-law may be invalid if it restricts the type of residential use, discriminates between occupiers, is inconsistent with legislation or is unreasonable when the interests of all owners and occupiers are considered.
The practical approach is to regulate the problems associated with short-term letting instead of trying to prohibit the activity itself. A by-law that attempts to prohibit an otherwise lawful activity may be invalid if challenged, depending on its wording and the circumstances.
What can a body corporate regulate instead?
By-laws can regulate the use and enjoyment of lots, common property, body corporate assets, services and amenities. They can also deal with the administration, management and control of common property and body corporate assets.
This gives a body corporate scope to address conduct and practical impacts without targeting short-term letting as a category.
Before proposing a new by-law, identify the actual problem. For example, it may involve:
- repeated late-night noise
- guests obstructing access to common property
- rubbish left in shared areas
- vehicles parked where they should not be
- behaviour that interferes with another resident’s use and enjoyment of their lot
- unsafe or antisocial conduct.
The by-law should address that conduct directly. It should not assume that every short-term visitor is a problem or apply different rules only because an occupier is a tenant or visitor. By-laws must not discriminate between types of occupiers and must not be oppressive or unreasonable.
A body corporate may need to review its existing by-laws before considering changes. Existing rules may already deal with noise, parking, rubbish, use of common property or nuisance. Clear communication with lot owners, letting agents and guests may also prevent problems before formal enforcement is needed.
How can by-laws address noise, parking and overcrowding?
Noise, illegal parking and overcrowding should be considered as separate conduct issues rather than proof that short-term letting itself is unlawful.
In a community titles scheme, an owner or occupier must not use a lot or common property in a way that causes a nuisance or hazard, or unreasonably interferes with another lot or common property. They must also not allow another person, such as a visitor, to use the lot or common property in that way.
Examples of nuisance or hazard may include unreasonable noise, obstructed access to common property and antisocial behaviour.
A targeted by-law may set reasonable expectations about conduct in shared areas, parking arrangements or noise. The body corporate should check that the proposed wording falls within the matters that by-laws can regulate and does not impose an unreasonable restriction.
A rule about the number of occupants, use of a pool or booking of a facility will not automatically be valid. The wording, purpose and effect of the by-law must be considered against the BCCM Act. A body corporate should obtain appropriate advice before putting a disputed or complex by-law to owners.
A practical by-law package might deal with:
- keeping noise to a reasonable level
- preventing obstruction of driveways, entries and other common property
- requiring rubbish to be placed in the correct area
- complying with reasonable parking rules
- ensuring guests follow the scheme’s common property rules.
These obligations can apply to owners and occupiers, including tenants. Tenants must comply with the body corporate’s by-laws and should receive a copy of them when their lease starts.
What role do council planning rules and development approvals play?
Body corporate by-laws and council planning controls are separate issues.
A planning scheme or development approval may independently restrict short-term accommodation at a particular property. This does not give the body corporate a general power to ban short-term letting through a by-law. The owner or operator may need to check whether the proposed use is permitted under the relevant planning controls.
The available council guidance is Brisbane-specific. Brisbane City Plan 2014 treats a bed and breakfast as a home-based business and says it does not include a motel, hotel or other forms of short-term accommodation. Before setting up a bed and breakfast in Brisbane, the property owner may need planning approval and building approval.
The Brisbane guidance also recommends checking the property’s zoning, neighbourhood plans and overlays, and understanding the relevant Home-based business code.
These requirements should not be treated as a statewide rule for every Queensland council. Planning schemes and approval requirements can differ between local government areas. Owners and committees should check the relevant council’s current planning information for the property.
A body corporate manager can help the body corporate deal with its own by-laws and records, but should not promise that it can enforce council planning requirements. Planning questions should be directed to the relevant council or a suitably qualified planning professional.
How can a body corporate respond to short-term letting problems?
Start by recording the specific issue. Keep copies of complaints, dates, times, photographs, correspondence and other evidence showing what occurred and whether the behaviour was repeated.
If the issue concerns a nuisance or hazard, try to resolve it with the other person first, preferably in writing. Documenting the behaviour may help demonstrate that it is repeated and ongoing.
If a registered by-law is being breached, the body corporate is responsible for enforcing its own by-laws. Owners and occupiers can also ask the body corporate to take action.
The usual formal step is a by-law contravention notice. A continuing contravention notice can require a person to fix an ongoing breach, while a future contravention notice can require a person not to repeat a breach that is likely to happen again.
The notice should identify the by-law, explain how it has been breached and state what the person must do. If the person is an occupier who is not the owner, the notice should be given to the occupier, with a copy provided to the owner.
Enforcement can be difficult when short-term visitors leave before a process is completed. Prompt reporting, good records and clear communication with the lot owner or letting agent can help.
What should owners and committees check before taking action?
Before proposing a ban or sending a contravention notice, check:
- whether the lot is lawfully available for residential use
- the wording of the current by-laws
- the specific conduct that is causing concern
- whether the conduct is ongoing or likely to be repeated
- what evidence supports the complaint
- whether the proposed response applies fairly to owners, tenants and visitors
- whether a council planning issue needs to be checked separately.
Owners can raise short-term letting problems with their committee or body corporate manager. A body corporate manager may assist with the body corporate’s process, depending on the manager’s engagement and the body corporate’s instructions.
You can also read our guides on managing disruptive behaviours in short-term letting, overcrowding in apartments and enforcing by-laws.
A body corporate generally cannot ban lawful short-term letting through a by-law, but it can take measured action about nuisance, hazards and other genuine breaches. If you need help reviewing a short-term letting issue, contact our team at reception@stratacare.com.au.
