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 . 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.