Many strata communities in Queensland are used for both long-term residential living as well as short-term accommodation.
While this is not a new phenomenon (think apartment buildings in tourist spots on the coast), in the past it has been far more regulated and transparent.
Back in the day, if you wanted to go on a holiday, you stayed in a hotel that had a front desk and staff on hand.
Uniquely for the time, Queensland also established a management rights industry that allowed a business to secure the advantage of residing onsite to exclusively run that short-term letting business.
With the rise of Airbnb and similar platforms, short-term letting activities have become more difficult to manage and regulate in private strata buildings and in some cases occur in buildings which are not at all suited to this type of accommodation.
There are many strata scheme’s that manage short-term letting activities in a manner that balances the interests of long-term residents with Airbnb hosts and holiday-makers. However, unsurprisingly, in communities where the interests of permanent residents and holiday makers are not aligned disputes have arisen.
The issue is also clouded by the lack of clarity on what actually is permitted in QLD for short-term rentals and the body corporate’s power to regulate them.
So, what actually is the deal for short-term rentals in QLD strata properties?
Can we ban short-term letting in our scheme?
Not really. No.
The current view of the law under the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) is that a body corporate cannot restrict short term letting in the by-laws.
The view is that short term accommodation and/or holiday letting is:
- a type of residential use; and
- a form of a lease,
The legislation specifically prohibits a by-law from restricting the type of residential use to which a lot can be put.
Additionally, the Queensland Civil and Administrative Tribunal (QCAT) found that the legislature had intended for the term ‘residential’ to include holiday letting/short term accommodation and that imposing a restriction on holiday letting through the by-laws would contravene body corporate legislation.
An important rule of thumb for a body corporate is that you shouldn’t seek to ban things but properly regulate them.
A by-law that is purposed to outright prohibit what would otherwise be a legal activity would generally be an invalid by-law if challenged. Adjudicators’ orders have consistently found that any by-law prohibiting the running of short-term letting in a lot is invalid.
In short, your body corporate will not be able to ‘ban’ short-term letting but it could certainly look to regulate the activity in some other way.
Review the by-laws to ensure they contain appropriate measures for regulating problems commonly associated with short-term letting, such as noise, illegal parking, overcrowding and overuse of shared facilities.
For example, your body corporate may introduce by-laws that regulate/restrict the number of occupants per lot, the opening and closing time of the swimming pool or a booking system to better manage the use of common facilities.
Bodies corporate that are concerned with short term stays should closely examine what issue is arising because of that and consider creating a suite of by-laws to better manage those behaviours.
The conduct obligations and enforcement process applies to everyone; owner occupiers, short term and long term tenants.
The obvious limitations with enforcing these type of by-laws in a short-term letting context is by the time a committee gets around to issuing a by-law contravention notice, the offenders are usually long gone.
Local Zoning and Planning Laws
Local authorities (councils) are the bodies that regulate the use to which property can be put.
There are two restraints on the use of land that apply under the planning laws:
- The development approval for the site; and
- The planning scheme (for example the Brisbane City Plan 2014).
Each local council has a planning scheme that determine what uses are permitted in a designated zone and the development approval lists the existing permitted uses for the premises. This is to ensure that developments are suited to the environment and space in which they are built.
Allowing properties to be used contrary to the development approval is an offence under the Planning Act 2016. A body corporate cannot enforce the council’s requirements, but it can complain to council about the lack of compliance with the planning approval.
So if your local planning laws are specific in terms of short term occupancy rights then you may be able to prohibit short-term letting through engaging the council to enforce its own planning laws.
If there are no local planning laws that are specific in terms of short term occupancy rights you probably will not.
A development offence may be prosecuted by the local government, or affected stakeholders may seek enforcement orders in the Planning and Environment Court.
Alternatively, a development approval may be amended by submitting a development application for a material change of use. If successful, the permitted use of lots in the scheme can changed.
While QLD updated its body corporate legislation earlier this year there was no changes concerning a body corporate’s ability to regulate or prohibit short-term letting activities in another example of strata law being far behind what is actually happening in reality and in the digital space.
At least for now, bodies corporate cannot restrict short term letting unless it is not a use permitted under the development approval. In the meantime, the best option is for bodies corporate to implement targeted by-laws to better regulate the behaviour of short-term occupiers.
Everyone has the right to a peaceful, safe and secure strata living environment. If short term letting activities are causing you problems, you can lodge a complaint with your committee or body corporate manager, and they assist you with taking action.
Need further info?
If you wish to discuss any short-term letting matters further, please do not hesitate to get in contact with a Stratacare body corporate manager.
Please note the above information is not specific advice and should not be relied upon as such. This information provided is general advice.