This article is about disruptive behaviours in short-term letting such as Airbnb. The information has been supplied by the Commissioner for Body Corporate and Community Management.
The popularity of short-term accommodation platforms has revolutionised the way property owners rent their lots, providing an abundance of choices for both owners and holidaymakers.
However, the convenience these platforms offer can sometimes lead to challenges for body corporate residents.
This article aims to shed light on the current landscape and regulatory framework, specifically under the Body Corporate and Community Management Act 1997 (the Act), regarding short-term letting in community titles schemes.
Additionally, it outlines practical avenues for bodies corporate to effectively manage disruptive behaviours associated with short-term visitors.
Restricting short-term letting
One of the most common questions asked is whether a body corporate can choose to ban or restrict short-term letting. Based on decisions from the Queensland Civil and Administrative Tribunal (QCAT) and our adjudicators, the current position is that community titles schemes cannot create by-laws banning or restricting short-term letting.
This is largely based on the by-law limitations in sections 180(3) and (4) of the Act, which provide that:
- if a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use; and
- a by-law cannot prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.
The effect of these sections on attempts to restrict short-term letting is demonstrated in the two case examples outlined below.
This QCAT appeal concerned a motion which sought to prevent owners from letting their lots for a period of less than six months.
The appeal turned upon the meaning of the term ‘residential’ in section 180(3) of the Act. The appellant contended that ‘reside’ means “to dwell permanently or for a considerable time”. However, Member King-Scott resolved that “the legislature intended that the term ‘residential’ would include holiday letting and/or short-term accommodation and that is the way it should be construed” in the Act.
Member King-Scott also considered whether ‘other dealing with a lot’ in section 180(4) of the Act incorporated short-term letting. It was ultimately determined that short-term letting was a form of lease protected by this provision.
Member King-Scott dismissed the appeal, upholding the adjudicator’s initial order that the motion was invalid and of no effect.
- Case example 2: Admiralty Towers II [2019] QBCCMCmr 567
A by-law was created which required body corporate consent to be obtained for leases that were less than three months.
One owner attempted to distinguish this by-law from the QCAT decision discussed above on the basis that it was not a blanket ban, but rather, a regulation on short-term letting. The adjudicator determined that although the by-law was in line with section 169 of the Act which allows for the regulation of the use and enjoyment of lots, it still offended sections 180(3) and (4). It was observed that these sections are not only about outright prohibition – they are also about restriction.
The adjudicator remarked that “the ordinary meaning of the word “restrict” is to place limits upon something. The limiting factor imposed…is body corporate consent. A short-term lease may not proceed without it, while longer leases may proceed without interference.”
The adjudicator resolved that the by-law was invalid and ordered the body corporate to remove it from the community management statement.
Managing behavioural issues
The body corporate may not be able to make lawful by-laws that specifically restrict short-term letting. However, there are some actions a body corporate and owners, who short-term let their lots, can take that may assist with issues that arise.
Addressing disruptive behaviour from short-term visitors requires a proactive approach to ensure a positive experience for everyone. Here are some steps that may help to manage and mitigate issues:
Effective communication
Effective communication can often be a preventative measure against disruptive behaviour. In our experience, by-law breaches often occur because the person was unaware of the by-laws at the time.
Bodies corporate may wish to circulate certain information to owners involved in short-term letting – some examples might include:
- a copy of the scheme’s by-laws (possibly highlighting by-laws regulating noise, nuisance, or the use of recreational facilities)
- correspondence reminding owners to alert their short-term visitors to the by-laws
- information about by-law enforcement in the event of breaches.
Appropriate signage may also be displayed in communal areas – especially recreational facilities such as pools, barbeque areas or tennis courts, drawing attention to relevant by-laws.
Remember, an effective strategy often involves a combination of these measures, tailored to the specific needs and characteristics of the community. Regularly review and update these strategies to adapt to changing circumstances and feedback.
By-laws regulating the use of recreational facilities
Instead of seeking to ban or restrict short-term letting, bodies corporate may consider regulating the use and enjoyment of common areas and recreational facilities. For instance, booking systems could be created to secure the use of recreational facilities for an upcoming event, or opening and closing hours could be set for the use of recreational facilities (as demonstrated in the case example discussed below).
However, it is critical to remember that a body corporate is not free to create any by-law it wants – clear limitations on by-laws are outlined in the Act. For example, section 180(7) of the Act prevents by-laws from being oppressive or unreasonable, having regard to the interests of all owners and occupiers and the use of common property. Also, section 180(5) of the Act prevents by-laws from discriminating between types of occupiers.
You can view the full list of by-law limitations on our website and in section 180 of the Act.
Disregarding the limitations in section 180 of the Act means that a body corporate opens itself up to disputes. If you are in the process of creating new by-laws and you are unsure whether they comply with the Act, we recommend seeking independent legal advice, as our office cannot assist you with drafting your by-laws.
We have provided a case example below in which a body corporate successfully created a by-law regulating the use of its recreational facilities. However, it is important to bear in mind that adjudicators’ orders are only guidelines, not precedents. Each matter before an adjudicator is decided based on its own unique circumstances.
- Case example: The Grove [2018] QBCCMCmr 581
The body corporate adopted a by-law which prevented occupiers from using any recreational facilities on the common property between 10pm and 6am, unless they obtained the written consent of the committee.
The applicant disputed the validity of the by-law, contending that it discriminated against shift workers who wanted to use the swimming pool after work. The adjudicator rejected this argument, stating that it is “in the interests of all residents that there be regulation of the use of recreational facilities on common property, particularly late at night when the use of those facilities has greater potential to disturb others”.
The adjudicator also noted that an occupier who wants to swim quietly at 5am might still receive approval from the committee to do so under the by-law, whereas an occupier wanting to hold a pool party at midnight might not.
Local planning requirements
Importantly, the regulation of short-term letting in community titles schemes does not end with the body corporate legislation. Local planning and zoning requirements could also affect the operation of short-term letting in a body corporate. Bodies corporate and owners who are thinking of using their lot for short-term letting should familiarise themselves with these requirements.
Each local council has its own ‘local planning scheme’ which includes information about the permitted uses in a specific zone. There may also be a development approval for the scheme which outlines the current authorised uses for the property.
You can contact your local council for more information about the local planning and zoning requirements for your body corporate and enforcement in cases of non-compliance.
We hope that this article has helped to clarify this contentious subject and provide some practical options to manage some of the behavioural challenges posed by short-term letting.
It is imperative to recognise that achieving a certain degree of harmony in community living means considering the interests of all involved.
Doing your best to strike an appropriate balance between the interests of long-term residents and owner-investors, who are using their lot for short-term letting, may go a long way towards avoiding unnecessary conflict in this area. Collaborative efforts between bodies corporate, long-term occupiers, and short-term let investors can contribute significantly to achieving a harmonious coexistence.
By actively working together, stakeholders can navigate challenges, promote understanding, and create a community where both short-term letting and long-term residency can thrive.
Information Service Freecall 1800 060 119
Commissioner for Body Corporate and Community Management
This post appears in Strata News #678.
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This article has been republished with permission from the author and first appeared in the BCCM Common Ground newsletter.
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