By Clare Kent, Senior Content Specialist
With thousands of Australian property owners relying on Airbnb and Stayz to rent their properties for short-term, holiday and even permanent accommodation, the legislative environment in Queensland has been slow to respond to the challenges these types of occupancies bring. This particularly applies where the property being let is an apartment.
Common issues in apartment complexes which may arise include:
- occupants disobeying parking by-laws;
- occupants making excessive noise;
- overuse of common facilities;
- occupants leaving rubbish on the common property which the body corporate must pay to have removed; and
- the apartment complex receiving a “party town” reputation.
It’s not uncommon for body corporates to try and prevent owners renting out their apartments through these online letting services.
For some owners, however, the short-term letting market is often very lucrative. Indeed, in desirable locations, owners may receive a better rental return by renting their apartments out through Airbnb etc. than by traditional letting arrangements.
Are there options for a body corporate to stop short-term letting?
In Queensland, there is not much a body corporate can do to stop short-term letting. This is due to the relevant parts of the Body Corporate and Community Management Act 1997. Section 180(3) of the Act provides that if a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use. Section 180(3) makes it clear that a body corporate cannot use the by-laws to introduce a ban on, for example, ‘schoolies’ or rentals under three months – see the recent decision of Macleay Tower & Villas  QBCCMCmr 12 in this regard.
A body corporate may seek to minimise the impact of short-term occupants by passing a by-law which restricts the occupant’s use of the shared facilities (such as the pool). However, it is likely that such a by-law would be impermissible as s 180(5) provides that a by-law must not discriminate between types of occupants (e.g. between owners and renters).
Charging the owner an additional fee to cover the costs of their Airbnb occupants using the shared facilities may also be tempting for a body corporate. A by-law (other than an exclusive use by-law) cannot impose a monetary liability on a particular lot owner for additional expenses incurred by the body corporate as a result of their short-term occupants (s 180(6)).
A body corporate can introduce by-laws to restrict noise etc. however from a practical point of view, such by-laws are not going to assist a body corporate to combat undesirable behaviour from short-term occupants. This is due to the emphasis in the legislation on written notice and dispute resolution before anything can be done about the contravention of the relevant by-law. By that time, the offender (if they can even be identified) will likely have left the premises.
Queensland amended the Sustainable Planning Act in 2014, the so called “party house regulations” provide local councils with the power to regulate residential accommodation used as “party houses” in their council areas. However, a body corporate cannot compel a local council to regulate party houses and few councils have elected to do so.
Tackling the short term letting juggernaut
Given the growing popularity of Stayz and Airbnb and the impact of short-term letting on other occupants, the regulators in Queensland need to look at ways to assist body corporates to deal with the impact of short-term letting. This may even extend to giving body corporates the power to ban continuous short-term letting of a whole apartment where all owners are in agreement.