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QLD: Q&A Power to Stop Short Term Rentals in our Building

The LookUpStrata Team
how-to-stop-Short-Term-Rentals

These Q&As are about stopping short term rentals such as Airbnb in Queensland strata schemes.

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Question: Our complex by-laws state we can only short-term let our property. Are these by-laws valid, considering the current rental crisis? We were considering long term letting our unit as our holiday returns are very low.

Answer: The by-law may be a notice to owners for a particular town planning condition.

Assuming the scheme is regulated by the BCCMA, a by-law of that nature is invalid as it contravenes sections 180(3) and 180(4) of the BCCMA, which relevantly provides:

  1. If a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.

  2. A by-law can not prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.

However, in some circumstances, such a by-law exists as a notice to owners for the purposes of a particular town planning condition.

Accordingly, even though the by-law cannot be enforced against the owner by the body corporate, it would be worthwhile confirming with the council whether there are any restrictions on permanent letting.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the November 2023 edition of The QLD Strata Magazine.

Question: The shop within the scheme holds lock boxes on behalf of lot owners to hand out to short-term guests. Our caretaker has a short-term letting license in our building. Is the shop a competitor? Can there be more than one letting agent?

I am the chairperson of a strata titled building in Qld. The building includes a shop within the strata boundary. I recently went into the shop and saw some key lock boxes on a shelf. A customer asked the shop attendant for a room key, and the attendant passed over a key.

I asked the attendant why they held so many key lock boxes. Owners who rent out their lots on Airbnb have arranged with the shop to serve as the designated location for their guests to pick up the keys.

Our caretaker has been granted a short-term letting licence. Would the shop handing out room keys be considered a form of letting? Can there be more than one letting agent? Can you run a business within a business?

Answer: Depending on what the by-laws provide for, the shop may have an issue competing with the caretaker as part of a letting operation from within scheme land.

Depending on what the by-laws provide for, the shop may have an issue in competing with the caretaker as part of a letting operation from within scheme land.

Owners are free to engage any person to act on their behalf as an agent (or assist them in providing services); however, it is the body corporate who is usually restricted from endorsing more than one letting agent. There may be an obligation here (depending on the by-laws) to seek to stop the competing letting from taking place from within the lot.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #655.

Question: Can we introduce an extra levy for unit owners who short-term let their unit?

Can a body corporate in Queensland introduce an extra levy for unit owners who are using their unit for short-term letting like Airbnb?

Brisbane City Council charge people who use their property for short-term letting additional rates. Can we do something similar?

Answer: Your neighbours can use their lots for whatever they like, as long as that use does not break the law.

First, the lawyer’s answer…. body corporate levies, more properly ‘contributions’, are the way a body corporate raises money from lot owners to pay for common expenses. Contributions are calculated based on a proposed budget of expenditure. Where the budget falls short, or an unexpected liability arises, a special contribution is raised to cover the shortfall or extra amount, as the case requires. Contributions must be levied against lot owners pro rata their contribution schedule lot entitlements unless the contribution is for one of a few specific exemptions such as some types of building reinstatement insurance and public risk insurance of the common property, both of which are charged pro rata the interest schedule lot entitlements. The answer to this question then appears to be ‘no’, at least in the first instance even if, for example, a body corporate is incurring additional expenditure based on the Airbnb ‘use’ alone; e.g. extra pool or BBQ cleaning.

If however a lot owner uses their lot for a riskier activity, and that impacts the body corporate’s building reinstatement insurance premium, then the body corporate can adjust the premium payable by the ‘risky’ lot owner, to fairly reflect the lot owner’s risky activities versus the total risks covered by the policy. The example given in the Regulation Module is a lot owner who has a small manufacturing business in their lot, that involves storing flammable chemicals.

So, where a case can be made (typically by comparing pre and post Airbnb insurance quotes) that Airbnb use is increasing the body corporates building reinstatement insurance premium, then arguably the additional premium, attributable to the ‘riskier’ use, could be passed on to the relevant lot owner/s.

Next, the answer that needs to be said… just like you can, your neighbours can use their lots for whatever they like, as long as that use does not break the law. Queensland Parliament has not empowered bodies corporate to tax their neighbours based on how they use their lots. NIMBY’ism is bad enough in local councils – it would be a nightmare in bodies corporate armed with a taxing power based on use. Strata in Queensland is ‘community’ title and community requires patience (for example when you are driving behind elderly neighbours who are entering or exiting the car park), consideration (for example, not practising on your saxophone when your shift work neighbour is sleeping), mutual respect (for example, each occupier abiding by the by-laws, for everyone’s mutual benefit) and especially tolerance… of other people living their lives, and doing the best they can.

Michael Kleinschmidt Stratum Legal E: info@stratumlegal.com.au P: 07 5406 1282

This post appears in the March 2023 edition of The QLD Strata Magazine.

Question: Can we have a by-law that allows short-term guests, but not their additional guests?

It is that time of the year again when short-term holidaymakers descend on what was built to for permanent residential owners (Standard Module). But as we all know, we seem to be stuck with short-term guests, many of whom disrupt our lives with noise and no care for our property.

So, what can be done when the onsite letting agent doesn’t want to police the activity of short term guests and the committee doesn’t want to know either. Some short-term guests come to the area to visit family and friends. As they stay in our lovely building on the river, they invite their family or friends in large numbers to come and enjoy our facilities, often taking over complete areas, especially the swimming pool and marina. Can we have a by-law that allows short-term guests, but not their additional guests?

Answer: You can’t have by-laws that apply to different types of occupants so the short answer to your question is no.

You can’t have by-laws that apply to different types of occupants so the short answer to your question is no.

However, most standard by-laws have a clause in them relating to responsibility for guests and if those guests are breaching the by-laws i.e. through excessive noise, leaving behind waste etc. it is possible that they would be in breach of the by-laws. Generally though ,by-law breach notices happen after the fact, by which time the short-term guests and renters may have moved on so it is more about taking action against the owner and trying to get them to apply limits on their tenants.

Is there a reason the committee is disinterested in the matter? Perhaps you could raise a committee motion for the next committee meeting and ask to discuss it. You could do the same at an AGM or general meeting if that was possible. You need to see if others are being impacted in the same way as you and if there is any support for trying to control the issue.  If you can show that you have that then it gives more imperative to take action. For example it may not be possible to stop the guests coming to your site but it may be possible to communicate to owners and their tenants some of the issues and ways they could be eased.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #630.

Question: I have the management rights to manage the short-term letting in the building. Another person in my building is managing a number of apartments and letting them on Airbnb as short term rentals. What are my rights and is this a breach of my letting agreement?

Answer: Each management rights agreement and CMS is different.

This can be a twisty one. Each management rights agreement and CMS is different so it is really important to drill down on exactly what they say with reference to what the person is doing. Nothing can ever really stop anyone renting out their own unit but with Airbnb, there are questions of whether they are actually an agent and whether they are breaching anything in the by-laws, particularly.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #622.

Question: Is the strata manager obliged to report me to Council if I am advertising my apartment for short term letting on AirBnB?

Another lot owner in my building has complained to the strata manager that I am advertising my apartment on AirBnB. The lot owner insists the strata manager is obliged to report me to Council. Is it correct that 1 person in the building can make an accusation and the strata manager MUST report me to Council?

It is my understanding that if I live and run a business out of the unit, but it is primarily for residential use, I am allowed to have up to 4 persons stay on a short term basis. I don’t like being intimidated by a fellow resident when they are not in possession of the facts. How do I legally respond to the Strata Manager?

Answer: There’s nothing under body corporate legislation compelling the manager to do this.

There’s nothing under body corporate legislation compelling the manager to do this. There may be something in their contract, or under other legislation (although I doubt it). I should point out that regardless of whether the manager is or isn’t compelled to do so, it’s open to anyone to make a complaint to Council about the use of your lot. That might be another owner, a tenant, the committee, a contractor or indeed, a member of the public. The point being that it’s up to Council to decide whether or not to act upon a complaint they have enforcement power for.

You say it is your ‘understanding’ re: short-term letting. Do you know for sure what your rights and responsibilities are? If not, it might be a good idea to seek some qualified advice about it, because it is obviously an issue for you and others in your building. That would also answer your question about who might ‘legally sort this out’ for you.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #492.

Question: Our development is not zoned for Short Term Letting. If we apply to the council for a material change of use to Short Term Let, do we need Body Corporate approval?

We have recently discovered our 2017 development is zoned Multiple Dwelling and is not zoned for Short Term Letting. We have been letting it out for the past two years unaware of the Sunshine Coast Council zoning. 

The body Corporate (consisting of mainly residents) is now threatening to report us if we continue to short term let.

If we apply to the council for a material change of use to Short Term Let, do we need Body Corporate approval. Can the council enforce what we use our unit for considering it is in a high density residential area 100m from the beach?

Answer: application to Council would require both lot owner and Body Corporate consent and a change to the current by-laws may also be required once the Approval from Council is granted.

Many owners and body corporates are often caught out by not checking the approved development application before undertaking works or in this case potentially using the unit in a way that isn’t consistent with their approval. Council will act on complaints if received, and does have the power to undertake enforcement action if you are using your unit contrary to the development approval.

Each Council in Queensland can have slightly different rules, in the case of the example provided on the Sunshine Coast, the use of a unit zoned multiple dwelling for short term letting would not be in accordance with the approved use in the development application. You would require a new development approval to change the use to allow the short term accommodation. The application to Council would require both lot owner and Body Corporate consent and a change to the current by-laws may also be required once the Approval from Council is granted.

Jordan Holman Associate Director Town Planning Alliance E: info@tpalliance.com.au

This post appears in Strata News #470.

Question: Do strata complex registered under a Standard Module have a better case for restricting short-term rentals than a complex registered under the Accommodation Module?

There seems to be a move by state governments to restrict AirBnB / short term letting in strata complexes. If this was to be the case in Queensland, would I be right in assuming that a strata complex registered under a Standard Module would have a better case for restricting short-term rentals than a complex registered under the Accommodation Module? If so, would it be worthwhile to change from the Accomodation Module to the Standard Module?

I may be wrong but it would be interesting to see what the experts have to say.

Answer: That is an interesting perspective and one that may very well be pursued.

That is an interesting perspective and one that may very well be pursued. One consideration though is that you cannot always bundle the same distinction between:

  1. Owner occupier against investor owners; and

  2. Short term tenants against all other types of occupiers.

Parliament may feel like such an approach would disenfranchise long term tenants.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #464.

Question: Can recent decisions concerning short term letting specifically with a lot registered under BUGTA add any weight to properties registered under the BCCMA?

The case referred to in this article was an Appeal Decision (A Magistrate sitting as a Tribunal) delivered on 18 October 2019, his Honour noting “Short-term letting is by definition not residential. To be residential there must be a resident. That is someone who lives there on a permanent or long term basis.”

That decision was further appealed to the District Court, the decision dismissing the appeal, being handed down of 27 April 2020 – effectively permitting a by-law to ban short-term letting. Whilst the decisions mentioned above dealt specifically with a lot registered under BUGTA, do the judicial remarks below add any weight to the prospect of applying the principles to properties registered under the BCCMA?

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.

Answer: We are talking about quite separate pieces of legislation with quite distinct legislative provisions.

It’s important to clarify that decisions taken under BUGTA, including appeal decisions, apply only to those buildings to which BUGTA applies. Which is to say, the vast majority of buildings in Queensland are not affected by the decision you quote.

We are talking about quite separate pieces of legislation with quite distinct legislative provisions, including completely separate appeal processes, so the likelihood the BUGTA outcome might get applied in a BCCM context is next to none, in my view. Read this article for more detail: 99% (or more) of Queensland bodies corporate still cannot prohibit short term letting.

Your question is probably better put to government, to see if they would consider legislative change to respond to this specific outcome and have it apply to BCCM schemes.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News 448.

Question: Is it possible during COVID-19 for the Body Corporate Committee to close down the holiday letting and short term letting in our apartment block?

Is it possible during COVID-19 for the Body Corporate Committee to close down the holiday letting (Management holiday letting and AirBnB) of our apartment block? There are 152 units with the majority being owner residents.

Answer: There have been several adjudicators’ orders which have found that a by-law which, for example, purports to prohibit Airbnb is an invalid by-law.

I’m not sure how the committee would propose to do such a thing. In Queensland, section 180(3) of the Body Corporate and Community Management Act 1997 provides that ‘if a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.’ There have been several adjudicators’ orders which have found that a by-law which, for example, purports to prohibit Airbnb is an invalid by-law.

The body corporate may have engaged a caretaking service contractor who would, typically, also hold the authorisation to conduct a letting business at the scheme. That’s a contractual arrangement between the body corporate and that entity. Given this, and given also that those contracts are usually worth substantial amounts of money, any committee which is proposing to ‘shut down’ that business should be seeking legal advice before doing so.

Commonwealth and state and territory governments have made many directions and orders during the pandemic, including about people travelling and staying in residences other than their own. The NSW government has, for example, issued an order about short-term letting. If any of these orders are relevant for your body corporate then the committee may be bound to act upon those, although they would need to follow proper decision-making, minute-taking and communication processes in doing so and also noting my earlier comments about seeking legal advice where there are contractual matters involved.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #342.

Question: An owner lives in one unit and uses another unit in our building as an Airbnb. They run the Airbnb out of their unit. Is it a breach to conduct a business from a unit?

How many people can the letting agent put into a unit? Is it two per room, or two per unit? We live on the Sunshine Coast in our complex we have a mix of rentals and owner occupied units.

We have an owner who owns two units. They live in one and use the other as an Airbnb. As they run the Airbnb out of the unit they live in, is this a breach as they are conducting a business out of a unit.

Answer: Generally, by-laws are meant to regulate, not prohibit.

Body corporate legislation in Queensland does not provide for occupancy limits. This is typically a matter for the local council to advise you on. You might also want to check with Queensland Fire and Emergency Services.

Generally, by-laws are meant to regulate, not prohibit. A by-law that purports to outright prohibit an otherwise legal activity would generally be an invalid by-law if challenged, depending on circumstances. Adjudicators’ orders have consistently found that any by-law prohibiting the running of short-term letting in a lot is invalid. You’d need to check your current by-laws – and please, make sure they are in fact the current by-laws – for the wording of any by-laws about conducting a business.

If you believe the by-law is being breached you can seek to have it enforced. If you are part of the committee, you must enforce by-laws. Again, you might want to check with local council about any laws for conducting a business from home.

You may also wish to seek legal advice as there are some potentially complex legal issues at play in your queries.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #335.

Question: My unit is in a holiday destination and is listed on Airbnb. The Chairman lives on site and harasses my guests. Can he stop me from offering my unit as a short term rental?

I own a unit in a Queensland holiday destination. I list the unit on Airbnb as a short term rental. I have been harassed ever since the property has been let this way by the chairman of the committee who lives on site.

One of my guests informed me the chairman/resident was rude to them when they parked in the driveway in front of my garage just to unpack before putting their car away in the garage. Do I have any legal rights to prevent this from happening again in the future? Can the Chairman do anything to stop me from offering the unit as a short term rental?

There is another resident’s car which is almost always parked in front of their own garage in the common area. It just seems there are double standards here.

Answer: The BCCMA specifically prohibits a by-law from restricting the type of residential use to which a lot can be put.

There is not much a body corporate can do in relation to preventing Airbnb – perhaps that can be pointed out to the chairperson. We’ve written about that here: QLD: QCAT considers short term letting by-laws.

Otherwise, by-laws need to be complied with by all occupiers whether that be short term or long term occupiers. It is not an argument that others are breaching the by-law so I can to, but equally so the committee cannot selectively enforce the by-laws.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #264.

Question: What power do we have to stop short term rentals in our building?

I own a few units in a large strata scheme in Queensland. Our committee has discovered that some owners are advertising their units online as being available for short term lets, and our community and committee are concerned about the wear & tear to the building, plus other things like security.

The committee approached our body corporate manager about the issue. They were seeking advice on how to stop short term rentals from occurring, only to be told that the law specifically forbids a Body Corporate to limit the way in which a lot owner lets a property, therefore the Body Corporate is unable to take any measures to kerb short term letting.

We are wondering – surely this statement is incorrect? Either way, what can a strata scheme do to prevent Airbnb and the like in QLD strata schemes? Can you tell us how to stop short term rentals in our building?

Answer: The BCCMA specifically prohibits a by-law from restricting the type of residential use to which a lot can be put.

The BCCMA specifically prohibits a by-law from restricting the type of residential use to which a lot can be put. If you can live in a lot, the by-laws cannot restrict the living in it to a period of three months or more (as many try to do).

Building classification (class 2/3) is as dead as the dodo in terms of trying to impose limitations around tenure of occupancy too.

The only forum is planning – being your local Councillor. Local authorities are the bodies that regulate the use to which property can be put. If the town plan is specific in terms of short term occupancy rights then you may have a cause for complaint. If it doesn’t, then you more than likely don’t. This is just yet another example of the law being far behind what is actually happening out there in the real world in terms of the digital economy.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #110.

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