Active Law: Banning Airbnb and Short-Term Letting- A FALSE DAWN

By December 2, 2019Short-Term Letting

You may have heard or read recently about a Body Corporate being successful in banning short-term letting.

Many bodies corporate are for various reasons desirous of banning their owners from letting their lots through short-term letting platforms such as Airbnb and Stayz.

The case being touted as the “great white hope” is Fairway Island GTP v Redman and Murray [2019] QMC 13.

It is critical to note and accept that the Fairway Island body corporate is governed by the Building Units and Group Titles Act (BUGTA) and NOT by the Body Corporate and Community Management Act (BCCMA).

Had Fairway Island been subject to the provisions of the BCCMA, we contend that the decision would have been entirely different.

Why I hear you ask.

Put simply, BUGTA does not have the same statutory restrictions on bylaws as the BCCMA.

For example, under the BCCMA a bylaw cannot be oppressive or unreasonable having regard to the interests of all owners or occupiers of lots and the use of the common property.

Of even more importance, considering the subject matter, is that under the BCCMA a Body Corporate bylaw cannot restrict the type of residential use where a lot may lawfully be used for residential purposes. It has to date been held by Adjudicators that where a lot is used to house people on a short-term basis via a short-term letting platform, the lot is being used for residential purposes.

It is possible that an Adjudicator may give consideration to, or be persuaded by, the Magistrate’s interpretation of term “residential” in the context of the BUGTA (as discussed in paragraphs 116-123 of the Judgment) when considering applications under the BCCMA. However, we do not believe this to be likely and consider Hilton Park CTS 27490 v Robertson [2018] QCATA 168 to be the binding authority for bodies corporate regulated by the BCCMA for holiday or short-term letting.

Notwithstanding the Fairway Island decision, it remains the case that for most community title schemes in Queensland (given only a few of those schemes are governed by BUGTA) that on the current state of the law owners letting their lots through the likes of Airbnb and Stayz cannot be prohibited from doing so through the bylaws applying to the scheme.

Author: Active Law

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