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Can a Queensland body corporate stop Airbnb?

02 Mar 2017

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If you are in the accommodation industry and have not heard of Airbnb you must have been living under a rock.

The San Francisco-based home sharing juggernaut just keeps growing. It is affecting accommodation supply worldwide, but also in our little part of the planet.

An indication of how quickly Airbnb has arrived is reflected in the most recent BCCM review recommendations. We received the recommendations last month to an issues paper released in December 2014. The topic of short term letting restrictions would have been a perfect addition to that options paper, but Airbnb was simply not on the radar when it was published. This is yet another example of the pace at which technology is moving.

Disruption can mean many things, and there are always unintended consequences. If you are interested, have a look at this article from a tax perspective for property owners using Airbnb.

But back to our question.

What can a Queensland body corporate do about it?

We won’t keep you all in suspense. The answer is nothing.

For us, it all starts at a very macro level.

What right has a body corporate got to interfere with what goes on inside a lot? 

One of the most misconstrued aspects of strata living is the ability of a body corporate to come inside people’s front doors and impose rules.

What matters for a body corporate should be:

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

A body corporate has no ability to dictate what happens inside a lot outside those parameters. 

This is supported by the BCCM Act which very simply provides at subsection 180(3) that if a lot may be used for residential purposes, the by-laws can not restrict the type of residential use to which it is put. And yes - that catches all of those ‘no lettings under three months’ and ‘no schoolies’ by-laws. These are simply unlawful and unenforceable.

Some jurisdictions allow that type of by-law. Queensland doesn’t.

The next issue then 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, short term and long term tenants. 

The other thing that people need to make careful note of is the level of conduct 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 your amenity is disturbed. This is no different to living in suburbia. It happens. 

When we are advising on these styles of matters the issue is never the law. It is the burden of proof. Anyone alleging unreasonable interference needs to be able to make that out via evidence. A ‘he said, she said’ diatribe generally won’t cut it. The best example is always smoking.

That is all a body corporate can do if an occupier causes grief. It comes down to is conduct, not tenure of the occupant.

This leaves aside planning rules and permissions. Those are issues for the respective local authorities based on the approval they have given for the use of lots. Our experience is the approvals are usually pretty open and don’t restrict short term use, but that can vary from building to building. A body corporate cannot enforce the council’s requirements, but it can complain to council about the lack of compliance with the planning approval.

The building classification argument has been run and done too. It has been confirmed that there is nothing in the residential classes which preclude the short-term use of lots.

Them's the breaks. If you want action, talk to your local councillor. 

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Hynes Legal w
Posted about 8 months ago
We hear you Mick but that has been litigated pretty extensively in Victoria and it ended up being found that the building classifications did not include reference to the tenure of an occupant.
Michael Gay w
Posted about 8 months ago
I understand what you are saying but under building code 2 you can’t have short-term rentals. While you say the Body Corporate can’t do anything about it, why can’t the BC refer to the building code regulations where under code 2 there is no short term rental
Pip West w
Posted about 4 years ago
Hi Frank and the team at Hynes, I may be off the scene at present travelling Europe for a year. Well someone has to do it! Anyway the Airbnb fascinates me. I spoke years ago about the impact that I thought Airbnb and similar accommodation providers would have on the Aussie scene, particularly in reference to all the ongoing controversy about short term rentals. I am pleased to read that your thoughts exactly match my opinion. It has all come to pass, as prophesied. This past year I have used Airbnb extensively to travel Europe, most recently Spain and Portugal. There is NO place that I have yet to visit that doesn't offer a stack of Airbnb options, even in a place as small as Guejar, a small hamlet in the Spanish Sierra Nevadas. I am renting whole Apartments for as little as A$40 a night and as much as A$100 for places like Paris and Marseille. I always stay right downtown in the Old Historic parts of town where all the tourism is. Man you cannot beat this for value unless you opt for the hostel option, which of course is less salubrious, but still great value.The point I make is to almost guarantee any concerned Body Corporate that they are not going to stop his phenomenon anytime soon. In fact Airbnb encourage enterprising owners to try and manage other properties other than their own within the same or neighbouring building and thus move up the ladder to another platform within the Airbnb hosting structure. It´s basically Management Rights in action without the ownership or control that an onsite RUM offers. This should be another reason why on'site management of rental properties is imperative IF Body Corporates want any control whatsoever. Better the Devil you know? Perhaps....?
Karen Stiles w
Posted about 4 years ago
So speak to your local member! the Land & environment Court has repeatedly found that long term residential and short term holidays letting are incompatible. Different lifestyles. More to the point, short term letting imposes significantly more demands on the building eg lifts, water, electricity, security etc often because short-term letting encourages and allows overcrowding. In the short term this leads to increased levies for ALL owners. As well as unsuspected risk should somebody be injured or worse. And remember: all owners are jointly and severally liable for a debt should something go horribly wrong. So your neighbour reaps the profits and you dhare thr cost. Is that fair?
Barry Alleway w
Posted about 4 years ago
very clear thanks
Hynes Legal w
Posted about 4 years ago
No articles yet Deirdre, but we may well do a follow up on these are other issues we have had feedback on!
Hynes Legal w
Posted about 4 years ago
That is a slightly different issue Glenys. If it is an owner doing it they are potentially breaching the planning approval for the lot in terms of the car park not being used by the occupant. If it is a tenant doing that they have that planning issue as well as the issue that they are potentially parting with possession of part of the property without the landlords consent (assuming the landlord didn’t authorise that in the lease).
Deirdre Baker w
Posted about 4 years ago
An unfortunate state of play for resident owners who bought into a community scheme to live a quality of life that is longer term residential and not overnight stays. The article doesn't cover insurance and WHS factors, especially if there is overcrowding in a Lot. Also, the overuse of facilities where some lot owners are subsidising the 'business' of other lot owners is unreasonable simple accounting. It is beyond a matter of rights. It is cross-subsiding where some lot owners are disadvantaged financially by others. Are there articles that address these factors?
Mike Butler w
Posted about 4 years ago
Excellent article, Frank! I joined the property industry in 1980. Oh, how our world has changed since then! Today we have to deal with technology (and situations) that we would only have dreamed about 37 years ago.
Glenys Higgs w
Posted about 4 years ago
Does the same apply to letting out a parking space through service such as ParkHound?