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Body corporate prohibits singing in the shower

By Frank Higginson20 Jan 2020

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No, not really, but this is where some want strata laws to head.

There are many laws that affect community living, but the one that people most often overlook is the law of unintended consequences.

The ongoing battle about bodies corporate having the right to prohibit short-term letting has attracted a lot of attention, some of which has been nothing but clickbait. At the core of this though is a fundamental principle: what right should a body corporate have to regulate what goes on behind a property owner’s front door?

One day it’s short-term renters barred from the building – next, it’ll be a blanket ban on singing in the shower. 

Yes, I get that is an extreme leap, but in all seriousness, where does it end?   

Giving body corporate committees the ability to be complete regulatory overlords of their own strata kingdoms is a slippery slope to which there is no visible end in sight.

I can hear the clattering of angry fingers hitting keyboards out there already, but hear me out.  I am not advocating for short term letting.  I don't have a stake in Air BnB.  But I do have real concerns with giving body corporate committees unfettered rights to decide what goes on behind people's front doors.

When it comes to the occupation of lots, if we are giving bodies corporate the ability to regulate occupancy (and in effect usurping the power of local government), let’s also consider the other side of the same occupancy coin.  
If a body corporate can regulate the right of someone to occupy a lot (which is really what prohibiting a form of rental is), can it prohibit long term occupants, which heaven forbid, includes owner-occupiers?  
Is that really where we are heading with this?

I know of quite a few buildings in North Queensland tourism hotspots who would love the right to prohibit long term occupants.

The current legal position under the BCCM Act is a body corporate can regulate:

  1. What happens on common property and parts of a lot the that the body corporate must maintain; and
  2. Conduct inside a lot that interferes unreasonably with others in the scheme.

Outside those parameters, I think it is hard to argue that a body corporate should have the ability to dictate what happens inside a lot. If my singing in the shower causes a nuisance (which it most definitely would) then the body corporate will have actionable rights in that respect. There is nothing anyone should be able to do about it otherwise, as much as they might dislike singing in the shower generally.

The issue is conduct. If an occupier is causing such havoc that their conduct interferes unreasonably with the use and enjoyment of others, then there is a long-winded process with respect to by-law enforcement that can be undertaken. The conduct obligations and enforcement process applies to everyone: owner-occupiers, as well as short term and long term tenants. These do need beefing up. There does need to be more immediate consequences for bad behaviour – for both the tenant and the owner who allows that to take place (which was canvassed in this issues paper).

The last small rider is that the level of misconduct needs to interfere ‘unreasonably’ with others. ‘Reasonable’ interference is therefore not something that is actionable. Community living involves compromise. There are going to be moments where people’s amenity is disturbed. This is no different to living in suburbia. It happens.

There are more than 25,000 active short-term rentals listed in Queensland. If people want to restrict the Airbnb’s of the world, the place to start is with local council planning regulations, and not through body corporate by-laws. Giving bodies corporate planning rights that overside local councils is not the answer.

Proponents of increasing body corporate powers need to be careful for what they wish for. At some stage, they might not be the ones in power....

All the best for the year and decade ahead. 

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Comments
Hynes Legal w
Posted about 3 weeks ago
There are plenty of points Paul. One of them though from our end is not having the committee having the ability to absolutely control what goes on behind your front doror provide that whatever it is you do doesn’t interfere unreasonably with other people’s use and enjoyment of their lot.
Errol Anderson w
Posted last month
My issues with short term AirBnB type letting in mixed use Bodies Corporate, are 1. handing keys and fobs to people who have no "buy in" to the complex and may well have ulterior motives, and 2. what they do on common property while entering, leaving or just plain loitering. These are very different issues to what people do once they are in a Lot.
Bruce Christie w
Posted last month
It's a tough call either way, Frank. There are the Sanctimonious Righteous Brigade who vehemently do no wrong, and demand that any & all perpetrators be immediately and severely dealt with, And on the other hand there are the narcissistic personality disorderly who just can't understand why people are upset when they mindlessly create havoc with loud music, swearing, laughing, screaming, and generally unruly behavior. As an on-site manager with both permanent and short term renters and owner occupiers, the answer for me is a strictly enforced no-party policy set out on our web-sites and re-enforced when they book in. Owners are also reminded of our by-laws and generally (not always) most comply. The biggest issue with AirBNB and all booking agencies is that they do not take any responsibility for their guests (Oh, but we're only a booking platform!), the only thing they take is your/our money and most of that goes overseas. This industry and/or government needs a 'Donald Trump' or some likely character with some "balls" to liven up the "pencil-dick warriors" who have all but destroyed our way of life in the name of Human Rights.
Douglas Jones w
Posted last month
Thank you, Frank. That's 2 beers. ;-)
Len Undy w
Posted last month
As a BCM and a Chairman, I exhort Committees with "what is fair & reasonable when making a decision". It works most of the time calming the angry ants to some degree. These are a few factors that affect decisions; 1. As we old, we tend to get more intolerant - not in my day scenario 2. Politic Correctness breeds intolerance is many aspects of social connection - if you don't think as I do then you are a social/workplace leper. 3. Denying personal liability - not me your worship 4. Rights of an individual over the wishes of the majority - I am a black, handicapped, gay whale, therefore, my needs should be met first at your expense. 5. I am a bully so do as I say. 6. I don't like the rules so I will ignore them.- Damn you, damn the consequences. In summary: intolerance, ignorance, and irresponsibility
Hynes Legal w
Posted last month
Thanks Gerry - check this article out: https://hyneslegal.com.au/news/smoking-in-strata-nar-397
B Jones w
Posted last month
It is certainly a hot potato the whole Air BnB argument, Think about this, Short Term accommodation has a different building classification code to a permanent residential Building Short Term accommodation because of the nature of the classification has different construction requirements. I wonder what would happen if (God forbid) there was a fire started in a lot used for the purposes of short term accommodation in a building classified for permanent accommodation. Would the Insurer honor the claim or could they argue that the building is being used for purposes contrary to its approved design and classification and this has not been disclosed to the Insurer?? If an Insurer becomes aware the building is being used for purposes contrary to its classification and either refuses cover or increases the annual premium to cover the perceived increase in risk....then it is my understanding that the BC should be able to recover the "Increased cost" from the Air BnB lots. Ultimately I agree that it is the responsibility of the local councils to regulate the operation of businesses that operate in their jurisdiction and not the BC.
Gerry Foster w
Posted last month
would some one smoking in a lower or next unit constitute an interference with another unit if the second unit had COPD. This is not a personal question but one that was raised at our table of knowledge last Friday evening.
Gail Kraal w
Posted last month
What about the rights of other owners who bought into a residential building where the council planning is for long term rental only. Those other owners can pursue the termination of Airbnb’s in their building by registering a complaint to their local council.
carole henry w
Posted last month
I totally agree with you and as it is Body Corporates (Committees) think they are CEO of their own company LOL and carry on like Hitler. Take powers away from them is the only way forward. Committee members often have hidden agendas, most are mums and dads with no real idea about anything and use committee membership as a way to flex their muscles in their otherwise limp lifestyles. I have always thought committees need to be external i.e. not lot owners but people with common sense. Thank god I got out of such a situation and I would never, ever, ever buy again into a body corporate/strata situation. Buy freehold is the only way to go.
Bronwyn Rule w
Posted last month
Hear, hear!
max webster w
Posted last month
Your right , These gangs that make up most committees , make the rules on the run . I'm in a 10 villa complex & after 20 years the "gang" can't give a definitive answer on who is responsible for maintenance in a Registered Building Format Plan . Not an ideal situation , our community title living ...