AirBnB and Body Corporate Schemes in Queensland
The rights of a body corporate to enact by-laws which restrict owners’ ability to use platforms like Airbnb have been once again the subject of recent litigation. The outcomes of these cases provide important lessons for those looking to use these online platforms.
Can a Body Corporate stop a property owner from renting their unit through Airbnb?
The position in Queensland is generally considered to be clear in that, for schemes regulated by the Body Corporate and Community Management Act, the Act provides that if a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use.
That provision has been interpreted to invalidate a by-law purported to prohibit short term letting (including through a platform like Airbnb).
For example, in the 2018 QCAT decision of Body Corporate for Hilton Park CTS 27490 v Colin Robertson, the owners purchased a property under the Hilton Park Community Titles Scheme in October 2016. The owners later placed their property on ‘Stayz.com.au’ and engaged a property manager for holiday letting. By-law 12.1 applying to the scheme required that the lots only used be for residential purposes and prohibited use for ‘commercial purposes’. In February 2017, the body corporate passed a motion extending the meaning of ‘commercial purpose’ to include letting for less than six months.
The tribunal held that the phrase ‘type of residential use’ was interpreted to include both short-term and long term uses. As such, the body corporate’s attempt to prohibit short-term residential was invalid under the Act. The scheme’s attempt to classify letting arrangements for less than six months as being for a ‘commercial purpose’ under its by-laws was also invalid.
A recent Court decision, allowing a Body Corporate to ban Airbnb letting
This issue has recently been revisited in the media in due to a recent case of Fairway Island GTP v Redman and Murray [2019]. In this case, there was a decision to uphold a by-law banning short-term letting (such as Airbnb).
However, the application of the decision is limited. It will not affect the vast majority of community title schemes on the Gold Coast.
This decision will only impact scheme regulated by the Building Units and Group Titles Act (BUGTA). This is the historic form of the body corporate legislation which only applies to limited body corporate schemes (approximately 200 bodies corporate out of over 50,000 bodies corporate in Queensland).
This decision will impact you if you live in a BUGTA regulated scheme (such as Sanctuary Cove, Royal Pines or other specific schemes).
If you are unclear about the legislation where you live, ABKJ Lawyers can offer assistance. To make an enquiry, please use the contact page or call us on 07 5532 3199.
Frequently Asked Questions
Can a body corporate stop a lot owner from renting their unit through Airbnb in Queensland?
In most Queensland community titles schemes, a body corporate cannot prohibit a lot owner from renting their property through Airbnb or other short-term accommodation platforms.
Where a scheme is regulated by the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act), by-laws must comply with section 180(3) of the Act. This provision prevents a body corporate from restricting the type of residential use of a lot if the lot may lawfully be used for residential purposes.
What does the Body Corporate and Community Management Act say about restricting the “type of residential use”?
Section 180(3) of the Body Corporate and Community Management Act 1997 (Qld) provides that: If a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use.
This means a body corporate generally cannot differentiate between different forms of residential occupation, including:
- Owner-occupation
- long-term residential tenancy
- short-term or holiday accommodation
Accordingly, a by-law that seeks to prohibit short-term letting solely because of the length of a guest’s stay may be inconsistent with the Act and therefore unenforceable.
Can a by-law classify short-term letting as a “commercial purpose” to ban Airbnb?
In most circumstances, no. Some bodies corporate have attempted to prohibit Airbnb by defining short-term letting as a “commercial purpose” rather than residential use. However, tribunals have generally held that the nature of the occupation remains residential, even if the owner receives rental income.
In other words, the fact that a property is let on a short-term basis does not necessarily convert the use of the lot into a commercial activity for body corporate by-laws. As a result, by-laws that attempt to prohibit short-term letting by re-characterising it as a commercial use are frequently found to be invalid.
What did QCAT decide in Body Corporate for Hilton Park CTS 27490 v Robertson about short-term letting?
In Body Corporate for Hilton Park CTS 27490 v Robertson, the Queensland Civil and Administrative Tribunal considered whether a body corporate could restrict short-term letting through its by-laws.
The scheme had adopted a by-law stating that lots were to be used only for residential purposes and not for commercial purposes. The body corporate later attempted to define “commercial use” to include letting for periods of less than six months.
The tribunal held that short-term letting constituted a form of residential use, and Section 180(3) of the BCCM Act prevented the body corporate from restricting that use and therefore deemed the attempt to prohibit short-term letting invalid.
When can a body corporate lawfully ban short-term letting (for example, in BUGTA schemes)?
A body corporate may have greater capacity to restrict short-term letting where the scheme is regulated by the Building Units and Group Titles Act 1980 (Qld) (BUGTA).
Unlike the BCCM Act, the BUGTA legislation does not contain the same prohibition against restricting the type of residential use of a lot. This means some BUGTA schemes may lawfully adopt by-laws limiting or prohibiting short-term letting.
However, BUGTA schemes are relatively uncommon, as the BCCM Act now regulates most community titles schemes in Queensland.
How do I tell if the BCCM Act or BUGTA regulates my scheme?
The governing legislation for a community titles scheme can usually be determined by reviewing the scheme’s Community Management Statement (CMS) and the date the plan was registered.
Most schemes established after 1997 are regulated by the Body Corporate and Community Management Act 1997 (Qld). Some older developments may still be subject to the Building Units and Group Titles Act 1980 (Qld).
Unsure owners should obtain a copy of the CMS or seek legal advice to confirm the applicable legislative framework.
If Airbnb cannot be banned, what behaviours can by-laws still regulate?
Even where short-term letting cannot be prohibited, bodies corporate retain the ability to regulate the behaviour of occupants and the use of common property.
By-laws may address matters such as:
- Noise and nuisance affecting other residents
- Parking arrangements, including visitor parking
- Security and access to the building
- Use of shared facilities such as pools, gyms and lifts
- Waste disposal and property maintenance
- Compliance with safety and occupancy requirements
These rules apply equally to owners, tenants and short-term guests, and the body corporate may enforce them where breaches occur.
What steps should an owner take before listing their property on Airbnb?
Owners considering short-term letting should take several practical steps before listing their property:
- Review the scheme’s by-laws and Community Management Statement to understand applicable rules.
- Check local council planning requirements to ensure short-term accommodation is permitted.
- Provide guests with clear house rules that reflect the building’s bylaws.
- Nominate a local contact person or property manager to address issues during guest stays.
- Confirm appropriate insurance coverage, including cover for short-term letting.
