NSW: Q&A Short Term Letting and Airbnb in Strata Apartments

These Q&As are about Airbnb and short term letting in NSW strata scheme.

Table of Contents:

• QUESTION: Over the holiday period, our complex had many unknown cars, people and pets staying at our complex in units that were STRA let. Can we limit the number of people per unit to limit extra water use and complex wear and tear?
• QUESTION: I live in a new block of seven townhouses in NSW. One owner would like to rent out his lot as a short term let on a platform such as Airbnb. Are lot owners required to obtain approval from the strata committee before letting their lot as a short term rental?
• QUESTION: Two of the 12 lots in our building are used for Airbnb short term lets. We’d like to ban further short term letting, but continue to allow these two lots to operate in this way. Is this possible?
• QUESTION: What information about their property and the building can a lot owner share on the Airbnb platform? A lot owner in our building who rents their apartment states – ‘Guests can make noise from 6.30 am on any day of the week’.
• QUESTION: Our owners corporation has taken a tough line with short term rentals stating two strikes and you are out. Does the owners corporation have the power to order evictions?
• QUESTION: Does a hosted short-term rental accommodation premises need to be registered? Does a hosted STRA premises need to comply with the fire safety standards?
• QUESTION: We have a lot owner who short term lets their unit on Airbnb. Most residents in the complex are elderly and we are concerned about Coronavirus. What can we do?

Question: Over the holiday period, our complex had many unknown cars, people and pets staying at our complex in units that were STRA let. Can we limit the number of people per unit to limit extra water use and complex wear and tear?

Our complex is 61 units over four buildings has several STRA lettings. Over the holiday period 2023, the complex had many unknown cars, people and pets staying at our complex in units that were STRA let. A family of five were renting a single bedroom unit with their dog.

Renters placed hats in the pool gate to let non-key holders in, and the visitor’s car park was full of unknown cars. Not all residents are happy to be questioned over their letting. Our newsletter contains information on being STRA registered and compliant per the NSW Government requirements. But do owners read this? Government Departments only seem interested in regulating major complaints to ban landlords or tenants from the register.

What is the role of our body corporate in these situations? We want to limit the number of people per unit to limit extra water use and complex wear and tear. The wear and tear on the complex is subsidised by all owners who are not receiving high rental dollars like the STRA landlords.

Answer: Restrictions have been placed on the regulation/prohibition of short-term rental accommodation by owners corporations.

Since the introduction of Section 137A of the Strata Schemes Management Act, 2015 (NSW), restrictions have been placed on the regulation/prohibition of short-term rental accommodation by owners corporations.

While your concerns regarding overcrowding, increased costs and congestion to residents at the scheme are justified, you will need to seek expert strata advice on your specific situation and the appropriateness of a by-law to regulate STRA to the maximum extent permitted by law. We can suggest strata experts in this area should you wish to pursue this course.

137A Short-term rental accommodation

1. A by-law made by a special resolution of an owners corporation may prohibit a lot being used for the purposes of a short-term rental accommodation arrangement if the lot is not the principal place of residence of the person who, pursuant to the arrangement, is giving another person the right to occupy the lot.
2. A by-law has no force or effect to the extent to which it purports to prevent a lot being used for the purposes of a short-term rental accommodation arrangement if the lot is the principal place of residence of the person who, pursuant to the arrangement, is giving another person the right to occupy the lot.
3. In this section, short-term rental accommodation arrangement has the same meaning as in section 54A of the Fair Trading Act 1987.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the April 2024 edition of The NSW Strata Magazine.

Question: I live in a new block of seven townhouses in NSW. One owner would like to rent out his lot as a short term let on a platform such as Airbnb. Are lot owners required to obtain approval from the strata committee before letting their lot as a short term rental?

Answer: It depends, but the owners corporation should still be notified of this intended change in use.

Approval from the owners corporation is not required if the relevant townhouse is the owner’s principal place of residence and does not (among other things) exceed the 180-day limit and depending on what (if any) Airbnb by-law applies to your scheme. Although permission from the owners corporation in these circumstances is not required, in our view, the owners corporation should be notified of this intended change in use.

Consent from the owners corporation will be required if your local council planning regulations (Local Environmental Plans) provide that the use of a property for short-term letting requires development consent.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #658.

Question: Two of the 12 lots in our building are used for Airbnb short term lets. We’d like to ban further short term letting, but continue to allow these two lots to operate in this way. Is this possible?

I am an owner in a block of 12 units. Two are used as Airbnb. We would like to have a bylaw introduced to stop any future Airbnb, while still allowing the two units to continue to be used for short term letting. 

Does the motion to restrict further short term letting at a General Meeting have to have 75% vote? 

Is it possible to impose an extra levy or additional charges for short term let lots to cover the extra costs involved such as wear and tear of common property, damage to lifts etc.

Answer: Where you restrict all but two lot owners from using their lots for short term rental accommodation arrangements, it is likely to be a breach of the requirement that any by-law must not be harsh unconscionable or oppressive.

Your owners corporation can, with two major exceptions, pass a by-law to prohibit short term rental accommodation arrangements (short term letting). Like any other by-law it must be passed by a special resolution. In really simple terms if means that 75% of the unit entitlements present and eligible to vote at the meeting must vote in favour of the by-law.

The first exception is that a by-law cannot prohibit short term rental accommodation arrangements if the person occupying the lot uses it as their principle place of residence.

The second exception is that any by-law must not be harsh unconscionable or oppressive. Where you restrict all but two lot owners from using their lots for short term rental accommodation arrangements this is likely to breach this requirement.

In terms of imposing an extra charge for wear and tear on the common property, that is going to be a no-no. Why? The owners corporation cannot just charge lot owners for additional fees.

The owners corporation primarily raises funds through its levy contributions which are raised in accordance with unit entitlements rather than how much you use the common property.

How could it recoup expenses? The owners corporation could potentially resolve to provide an additional service such as security or a check in service for that lot that they could charge for but would need the lot owner’s agreement and to provide the service. The owners corporation could, with the lot owners agreement, also charge for any insurance premium increase resulting from this use.

A third option is that the owners corporation may, with a suitable by-law, be able to charge an administration fee to cover its costs of issuing extra security keys for the building.

Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990

This post appears in the June 2022 edition of The NSW Strata Magazine.

Question: What information about their property and the building can a lot owner share on the Airbnb platform? A lot owner in our building who rents their apartment states – ‘Guests can make noise from 6.30 am on any day of the week’.

Answer: If the owners corporation does not have a by-law dealing with short term renting, then it is probably a good time to organise one.

Short term letting such as Airbnb is now governed by a Code of Conduct in NSW.

This code sets out obligations for landlords, renters, and for the platform-provider itself.

In this situation, the owners corporation’s position maybe strengthened if the owners corporation has in place a by-law dealing specifically with the issue of short term letting. If the lot owner is in fact making this kind of statement, then they may be in breach both of the Code of Conduct and of any by-law which the owners corporation has in place dealing with short term letting.

If the owners corporation does not have a by-law dealing with short term renting, then it is probably a good time to organise one.

Warwick van Ede
JS Mueller & Co Lawyers
E. warwickvanede@muellers.com.au
P: 02 9562 1266

This post appears in Strata News #545.

Question: Our owners corporation has taken a tough line with short term rentals stating two strikes and you are out. Does the owners corporation have the power to order evictions?

I run a short term let unit within a large strata complex in NSW. Our owners corporation has decided to get tough with short term rentals and has adopted a policy of 2 strikes and you are out. We had 2 complaints lodged against separate renters over the summer holidays. We received a notice from the owners corporation to evict the tenants by 10 am the next morning.

After reading the article “NCAT tightens screws on by-laws”, I wonder if the owners corporation has the power to order evictions?

Answer: The short answer to your question is that the owners corporation does not have power to “order evictions”.

The short answer to your question is that the owners corporation does not have power to “order evictions”. The powers which the owners corporation has are limited by the Strata Schemes Management Act 2015 and the lawful by-laws of the owners corporation.

In broad terms, an owners corporation seeking that an owner or occupier takes certain steps will need to obtain an order for that to occur, which involves the owners corporation going through various processes. It is possible that a well-drafted by-law may provide the owners corporation with some remedies that it can utilise without the need to involve the NSW Civil & Administrative Tribunal, but those remedies could not include forcibly removing occupants of a lot.

Warwick van Ede
JS Mueller & Co Lawyers
E. warwickvanede@muellers.com.au
P: 02 9562 1266

This post appears in Strata News #541.

Question: Does a hosted short-term rental accommodation premises need to be registered? Does a hosted STRA premises need to comply with the fire safety standards?

Answer: All dwellings providing short-term rental accommodations are required to be registered on the NSW Government-run Short-Term Rental Accommodation register.

1. All dwellings providing short-term rental accommodations are required to be registered on the NSW Government-run Short-Term Rental Accommodation register irrespective of whether they are hosted or non-hosted.




2. All dwellings providing short-term rental accommodations are required to comply with the new fire safety standards irrespective of whether they are hosted or non-hosted.

Also please note the below weblink for your reference: Short-term rental accommodation

David Bannerman
Bannermans Lawyers
E: enquiries@bannermans.com.au
P: 02 9929 0226

This post appears in Strata News #511.

Question: We have a lot owner who short term lets their unit on Airbnb. Most residents in the complex are elderly and we are concerned about Coronavirus. What can we do?

We have a lot owner who short term lets their unit on Airbnb. Our complex has a Bylaw prohibiting short term letting, but regardless of that, our local Council has been fighting against the offending owners as our area is zoned residential only.

This has been going on for about 9 months. I now find that they are advertising again and have a booking starting for a week starting next week.

We are a reasonably sized townhouse complex with mainly retired and older owners who fall in the category of ‘most vulnerable” with regards to CoronaVirus.

With the Government rules and the lack of regard to rules and bylaws by the lot owners of this Airbnb, where do we stand in regards to prohibiting any holidaymakers from staying?

Related Article: Q&A Closing The Strata Pool and Gym Because of Coronavirus

Answer: From 10 April 2020, owners corporations will be able to rely on by-laws that prohibit short term letting provided the lot is not also the occupant’s principle place of residence.

This question needs to be answered in two parts:

Part 1 – the current legislation and case law

On the basis of the current strata schemes legislation and case law, if the decision of NCAT in Estens is followed, then any by-law that prohibits the use of a lot for short term accommodation will be invalid and it will be of no force or effect.

While I believe a case where planning legislation (that is the Environmental Planning & Assessment Act 1979) had the effect that there was no required development consent for the use of a lot for short term accommodation and there was a by-law prohibiting any unlawful short term accommodation, the by-law would be valid this situation has not been the subject of a reported decision, unfortunately. At best, council may enforce the terms of any development consent.

I would write to advise the lot owner that any insurance for their lot may not cover them especially if development consent is required and has not be obtained. On a more practical note, if this type of use is occurring and the persons had arrived within the last 14 days from overseas by air (or by boat from anywhere other than in NSW) then you could call the police or crimes stoppers every time the short term stay parties left the lot and attempt to have the police enforce any required self isolation period. If you mentioned this to the lot owner then it may act as a deterrent. Further, if the use of the lot has changed, i.e. it is only now being used for short term accommodation, then your strata manager should check to see if any insurance premium increase is caused and, if so, the owners corporation should seek that lot owner’s consent to paying that increase in premium.

Part 2 – fast forward two weeks: the legislative position will be changing on 10 April 2020.

From 10 April 2020, owners corporations will be able to rely on by-laws that prohibit short term letting provided the lot is not also the occupant’s principle place of residence. Then NCAT action can be taken to prevent this use provided you have evidence of the use, the lot owner / occupant does not use the lot as their principle place of residence and the scheme has a by-law prohibiting short term letting.

I mention from overseas by air or by boat as the only restrictions that I am aware of at the moment in relation to travel and self isolation in NSW relate to travel by boat and travel by air. The air transport restrictions relate to people who have been outside Australia, the maritime restrictions relate to people coming from outside NSW. These public health orders change frequently, however. They are, as at 6.30 pm 30 March 2020 published as being:

Public Health (COVID-19 Air Transportation Quarantine) Order 2020 [NSVV]:

5 Directions—persons arriving in NSW

1. The Minister directs that a person (a relevant person) who arrives in New South Wales by aircraft and who has, within 14 days immediately before that arrival, been in a country other than Australia must do one of the following as directed by the Commissioner of Police— (a) go directly to a quarantine facility specified by the Commissioner of Police, (b) go directly to a medical facility for treatment. Note. The Public Health (COVID-19 Maritime Quarantine) Order 2020 provides for the requirements that apply to persons arriving in New South Wales by vessel.
2. The Minister directs that a person required to go to a quarantine facility or medical facility under subclause (1) must comply with any directions of the Commissioner of Police in relation to the person’s transit at the airport or travel to the quarantine facility or medical facility.
3. The directions under this clause do not apply to a person who arrives in New South Wales in the person’s capacity as a member of the flight crew of an aircraft.

Public Health (COVID-19 Maritime Quarantine) Order 2020:

4 Directions—persons arriving in NSW on a vessel

1. The Minister directs that a person (a relevant person) who has arrived in New South Wales on a vessel that has come from a port outside of New South Wales must not disembark from the vessel unless the person— (a) is authorised to do so by the Commissioner of Police, or (b) is required to do so because of an emergency.
2. The Minister directs that a relevant person who is authorised to disembark from a vessel must do one of the following as directed by the Commissioner of Police— (a) go directly to a quarantine facility specified by the Commissioner of Police, (b) go directly to a hospital or other medical facility for treatment. (3) The Minister directs that a relevant person must, subject to any direction of the Commissioner of Police, remain at a quarantine facility or hospital or other medical facility for .14 days from the time of arriving in New South Wales.

Allison Benson
Kerin Benson Lawyers
P: 02 4032 7990
E: allison@kerinbensonlawyers.com.au

This post appears in Strata News #335.

Have a question about Coronavirus (COVID-19), airbnb and short term letting in NSW strata schemes or something to add to the article? Leave a comment below.

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Read next:

• NSW government cracks down on holidaymakers, threatens fines
• NSW Fair Trading: Changes to short-term rental accommodation

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