This Media Release about a welcome change to short term accommodation in the City of Brisbane.
Peak property body Strata Community Association (Qld) (SCA (Qld)) has welcomed the announcement of a 50% premium on rates for short-term accommodation in the Brisbane City Council Budget but argues this indicates a need for the state to devolve power to local communities.
SCA (Qld) President, Kristi Kinast, maintains Airbnb is one of the biggest problems in Queensland strata communities and hopes today’s announcement by Council will drive action by the State Government.
“Brisbane City Council’s announcement today affirms what we already know in the Queensland strata sector: short-term letting is a serious problem in the housing market and for residential amenity in strata complexes,” said Ms Kinast.
“As the industry association for body corporate managers, our members hear countless stories of properties being used for parties and anti-social behaviour, with committees and residents absolutely powerless to act. It is a serious issue in terms of the livability for many people in strata communities.”
Ms Kinast said whilst Council’s action was a positive step, the ultimate power to solve this issue was with the State Government.
“SCA (Qld) has been advocating to the State Government to pass legislation for a long time now which would allow bodies corporate to pass a by-law allowing them to ban short-term letting – this is currently impossible for 99% of Queensland’s strata communities.”
“SCA (Qld) believes this is a good policy that will help alleviate rental shortages and discourage short-term letting in strata schemes that were not intended for that purpose. However, the problem will be enforceability. As hard as Brisbane City Council Officers work, they cannot have eyes and ears in every unit block, townhouse complex and suburban six pack across the City The only way to have eyes on the ground is to devolve authority to bodies corporate.”
“A Council Officer cannot be on-site in every complex where there is a problem, but where a committee elected by unit owners is on-site and active, quick action can be taken on these problems. A committee chair on-site and a local body corporate manager are far more likely to be able to enforce restrictions on short-term letting quickly and easily.”
Ms Kinast believes bodies corporate need to be empowered by any reform to come from the State Government.
“SCA (Qld) believes any reform by State Government needs to allow more control for bodies corporate over their own destiny. There is no reason that State Government legislation should continue to leave them unable to make decisions about how their communities are run.”
Strata Community Association (QLD)
This post appears in Strata News #578.
Have a question or something to add to the article? Leave a comment below.
Read Next:
Visit our Strata By-Laws and Legislation OR Strata Legislation QLD page.
Looking for strata information concerning your state? For state-specific strata information, take a look here.
After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.
I understand the debate about whether a bylaw can prevent short term rental accommodation use, and also the issue of local governments getting higher rates for properties which may provide STA.
However, what say the law degree gurus about the issue of insurance. From what I’ve read on a few insurance company websites is that they do not cover STA in residential strata.
This puts the whole of a strata property at risk of not being covered by insurance when it is discovered the insurable event claimed was caused by a customer/user of the STA.
Very concerning.
Wow – looks like we have most of the UOAQ executive commenting on this one.
I’ll try to get to each comment – but let’s see how we go.
The rules allows for self-reportng (or dobbing by your neighbours), to be STA renting for over 60 days for 50% surcharge in rates to apply. It would mean that “a property on Brisbane minimum rating category would pay $600 extra a year”.
It would be interesting to see what will council do in schemes where STA is not permitted by their own admission – will they charge the increased rate, or will they finally enforce their own rules?
Hi Jana,
If councils don’t enforce their own rules, then the Planning Act allows you to privately prosecute the planning offence of unlawful use.
Greetings
I’m confused. Is SCA saying that all schemes should be allowed to decide YES or NO re short-term accommodation (STA) – including those schemes which have long-term rental managers (RUMs)whose business is based on short-term rentals?
Or are they saying that schemes should have this say ONLY if it applies to one-0ff short-term rentals like AirBnB which generally are run by the individual owners of those units and NOT the RUMs.
If the former, then this may aggravate a lot of rental managers who would not want owners having the right to prohibit the source of a lot of the RUMs income from short-term rentals
I agree you would be, like most, confused Ross. However the language of such debates is often designed to do just that – create confusion to inhibit clarity. You and others ought be readily excused for your confusion.
STA is STA (ie a Non-Residential and therefore unlawful land use). Any LGA will confirm this.
Irrespective of whether operated by ‘mum and dad’ investors or Resident Unit Manager (RUM) and
irrespective of whether operated for a week or continuously and
irrespective of whether by-laws allow or prohibit it – it will remain an unlawful use until a MCU approval by the LGA is in place to permit it..
All quite simple actually … just that a ‘RUM whose business is based on short-term rentals’ is exposed for running a business predicated on unlawful use with $1M+ penalties. Of the RUMs you refer to, perhaps have a quiet whisper to them that the gig may be up.
Jana makes a very valid point … what does an LGA do if they acknowledge the Unlawful use by charging the increased rate for the STA use. does this not have them concede knowledge of a contravention of the DA where no MCU for STA is first in place?
Hi Mike,
Wrong. STA is not inherently unlawful. Most planning schemes permitted STA as a class of residential use, as of right, for many years.
This is now changing; so you have to look at each site, each DA, the existing use rights, the (typically new) planning scheme and get planning advice.
If lot owners think a management rights business is being conducted unlawfully, because of the planning offence of unlawful use, then lets see some private prosecutions… and the results!
Really ??? I gag with disbelief at such misguided nonsense.
“SCA (Qld) has been advocating to the State Government to pass legislation for a long time now which would allow bodies corporate to pass a by-law allowing them to ban short-term letting – this is currently impossible for 99% of Queensland’s strata communities.”
An informed commentator will quickly identify this is not and never was to be resolved through by-laws.
Last I checked, Commonwealth Law and the High Court of Australia held more authority than a body corporate and its by-laws – but happy for commentator Michael to correct me on that.
This is because short-term letting in residential buildings already is and always was an Unlawful Use under State and local government law – with severe $Million dollar penalty I might add.
In Queensland, ‘Short-Term Accommodation’ is a defined Land Use and categorised as ‘Non-Residential’ !
The above article and commentary simply serves to further divert attention, placate complainants and suppress exposure of investors and their agents running unlawful quasi-hotel and short term letting operations (non-residential) in our homes and apartments (residential) land use. – Ref ss 163-165 Planning Act 2016 for clarity.
As for the comment “By-laws banning short term letting deprive investor owners of their rights and are lazy, dangerous, policy.” …. please cry me a river for the poor old investor owner.
Local governments will gladly charge double rates in full knowledge they are not enforcing planning law as they are duty bound … never mind the executive liability exposure of those officers should a catastrophe result of short term guests … once council accept higher rates for short-term letting they implicitly acknowledge their awareness of the unlawful land use occurring.
Perhaps Clint Eastwood ought ask local governments – “Are you feelin’ lucky? Are Ya?”
The State government has an even bigger problem as they too are aware of this horrendous liability. Either billions in compensation under s30 of PA16 or exposure to class action – neither is desirable one would expect.
I would be very interested if the commentator Michael above could produce any qualified legal advice as to the purported ” Rather than trampling on investors rights ” if it is suggested investors, building managers or letting agents have a ‘right’ to ‘Contravene a Development Approval’ and engage in ‘Unlawful Use’ of our residential properties to avoid exposure to $1,293,750.00 in penalty?
Those who suggest this is a by-law issue appear either ill-informed or are fully informed and are endeavouring to divert and suppress the real discussion that must be had.
ANALOGIES:
My next door apartment is used to store toxic chemicals but investor owner pays double rates so all good?
My next door apartment is used as a brothel but investor owner pays double rates so all good?
My next door apartment is used to house stray animals but investor owner pays double rates so all good?
My next door apartment is used as a clandestine drug lab but investor owner pays double rates so all good?
My next door apartment is used to host bucks parties – but investor owner pays double rates so all good?
The right to peaceful enjoyment of residential amenity is the only right residential property owners purchase.
Investor owners who brazenly defy these rights solely for their commercial gain and greed ought sell up or face the full force of the provisions of ss 163-165 of Planning Act 2016 (Qld). Each are executive liability provisions that also expose the respective body corporate committee members to $ 2,000,000 penalty.
Before crying me the river, commentators ought check their facts more diligently before attempting to divert from the real issue.
Before banging on again BCCM Act s180(3) … have a careful read of section 180(1) re “….or another Act”
(ie The Planning Act 2016)
Hi Tracey, conversations like this can be difficult, because what we talk about is the tip of the iceberg. In property law in Queensland, we have the benefit of hundreds of years of legal precedent and principles to protect our property rights – there is a reason we say that your home is your castle.
Whether you own that home, it’s mortgaged or it’s your fourth home should not matter, in terms of how it can be used.
As for the real issue, I deal with it every day, so I think I am entitled to comment – the by-law enforcement system is archaic and expensive. Lot owners don’t like conflict. So, the lazy, cheap solution is to remove owners property rights by passing a by-law.
Michael
Indeed you are again correct in that ‘your home is your castle’. i.e. when you don’t share title.
However your position conveniently ignores s35(3) of BCCM Act …
“35(3) An owner’s interest in a lot is inseparable from the owner’s interest in the common property. Examples—
1 A dealing affecting the lot affects, without express mention, the interest in the common property.”
I believe therein lies the strength of Tracey’s position and Examples – you share your Castle if it is strata titled with common property. It is the body corporates castle and the BC has the right to apply for the required DA for MCU.
I agree the by-law enforcement system is archaic and expensive – I also deal with it daily in 760+ lot schemes.
Your comment:
“So, the lazy, cheap solution is to remove owners property rights by passing a by-law.” in this context appears to assume residential unit owners have a property right to engage in ‘Short Term Letting’ — which we all know is absurd unless that right was conferred in the DA.
The upshot is — whether lazy or cheap you cant “remove owners property rights by passing a by-law” if that property right never existed from the beginning.
STA is no more a property right in QLD strata than any of the other examples of Tracey’s animal farm; toxic waste; brothel drug lab examples.
While possible, I doubt that you are currently living in a Qld strata titled residence as you would then have first hand experience of what unit owners of this State are enduring.
I am of the view that, as is so often the case, at the core of this issue is the money and greed of those whose livelihoods feed off the strata industry – some being large offshore multinational companies, others being more inhouse.
Hi Mike,
Wrong. The BC does not own the common property; see s35(1) of the Act. Further, to the extent that the Act does not cover an issue, and other legislation also does not, then the common law will apply (there are other exceptions, but lets run with it).
The Body Corporate gains certain powers under the Act for administrative convenience. The underlying title is and remains freehold, just like a non community titles scheme lot.
Now, as to the absurdity of doing what you like with your land, i.e. short term letting, take it from someone with a Masters, including in planning law, and a GDURP (i.e. me), that the starting proposition is that you can, in fact and law, do whatever the hell you like with your land, unless and until that use is restricted by law (whether planning or otherwise).
Yes, a development approval will permit uses, but old approvals typically endure as long as they are being used, new approvals for related uses are reasonably easy to get, and if you don’t like what your neighbour does with their lot – see my comments above about private prosecution.
Finally, I know precisely what life in strata title is like, having done it for a decade. I am also a commercial lot owner, a chairperson of my Body Corporate and I help people with strata problems everyday.
In my view, intolerance, impatience, bigotry and entitlement, are the cause of just as many disputes as greed.
I’ve never seen a body corporate that I would give town planning powers to. That’s what empowering bodies corporate to make by-laws banning short term letting amounts to. Flexibility is required in the housing stock, so that it can be used efficiently. The market will allocate the highest and best use to that stock. By-laws banning short term letting deprive investor owners of their rights and are lazy, dangerous, policy. When you dig into why bodies corporate (read, some other lot owners) don’t like short term let, it is because of some of the bad behaviours of (unsupervised) short term tenants. Rather than trampling on investors rights, why not tackle the actual problem – absentee landlords and archaic by-law enforcement processes. Buildings with a resident manager have less of these issues – because the tenants are supervised.
While I agree with some of what you say Michael, I do think that if a body corporate has the right to terminate itself – arguably, the most severe power of all – then they should also have the right to prohibit short-term letting or indeed, other types of activity at a scheme.
Hi Chris, different powers for different purposes – restrictions on the use of land are abhorrent to the western, common law property system that we inherited. As a society we agree to (very limited) restrictions on the use of land, to advance our society; for reasons ranging from the noble (addressing housing inequity or native title) to the venal (to create local economic activity). When bodies corporate are given the power to restrict land use, they will not do it in society’s interests. For example, they wont decide that their lots can only be used for community housing or for employment insecure over 50’s women. What they will do, as is evident from the co-ops in New York or the condo’s in Florida, is to homogenize their land use, excluding the ‘other’. To protect larger, societal interests, the power to control land use needs to be exercised by society, for society.
HI Michael,
I am sure you are more qualified to comment on the history of common law property system that Australia inherited than I am.
So, as an expert, I put to you the following:
As a layperson that should be the beneficiary of the “western, common law property system” that sees unnecessary restrictions on the use of land as “abhorrent”, I ask where is the protection of little me (the consumer) who bought into “residential” scheme marketed as “your home” and only “executive rentals of 6 months and longer allowed”? [a real quote from a real scheme’s sales documents].
I, the customer, believed it, and now i have my children facing bucks/hens parties with MA15+/R-rated content on balconies sometimes each weekend, suffer strangers in the carpark, destroyed common property I need to pay to restore, and cleaning ladies blocking the narrow corridors of the scheme with their trolleys every day – all well accepted if I chose to live in the hotel, but not so much when I moved to what should have been my residence – my home.
I know that my local council has confirmed that STA is not allowed in my scheme. Nevertheless, the enforcement has been dragging for over 4 years since their acknowledgement, and they are simply not prepared to take any action. After many tens of thousands of dollars that body corporate (therefore, I) spent on lawyers, there is a stalemate with the local council. So, what now?
Could it be, that if there were a by-law that have affirmed what is already stated in DA. the body corporate would be availed of another avenue to enforce its status – and not be dependent on local council’s rusty wheels of action? Especially if there appears to be a conflict of interest – local council charging higher rates means more income, so why would they be eager to cancel such an income source in a hurry?
There is no ability to influence social housing, employment of over 50’s (wo)men, or any other “larger, societal policy” by such by-law. Just another way to enforce already stated rules – STA allowed / or not – prescribed years ago by local council.
Hi Jana,
I do empathise, however you have plenty of options.
Sue the agent and / or the developer – misleading and deceptive conduct.
Private prosecution – as above.
Issue BCC Form 1’s – breaches of by-laws.
Being in a minority of one does not make you wrong, but sometimes it is simply better to accept that the community has become something other that what you thought it was going to be, and its time for you to sell up and move on.
Michael,
While I agree town planning powers should not be imparted upon a body corporate, I can’t see how town planning (ie regulating future development) is relevant. More correctly, it is the Development Approval already in place that permits what can or can’t lawfully occur in any existing property. It is the DA that is the definitive document that must be complied with in regards to the use of an existing property.
I also don’t believe it accurate to refer to short stays visitors as tenants as they do not occupy under a lease and do not hold exclusive sole occupancy rights of a tenant to any specific property.
Concerningly, the definition of an ‘occupier’ under BCCM Act suggests by-laws only apply to occupiers who ‘live on the lot’ or in other words are resident. This means that a short stay guest can defy all by-laws with impunity and there is little recourse for a body corporate. I believe this is at the core of the issue resident complain of more and more.
I fail to understand the relationship between a resident manager (caretaker) and landlords when one relates to cleaning maintenance chores and the other a real estate practice.
A building manager has no role intervening in the affairs of an investor owner as landlord – perhaps you meant to refer to an onsite letting agent possible complicit in the disruptive short-term letting themselves. If so, I can see that situation as being the proverbial wolf in charge of the hen house.
In any event, these discussions are always a welcome and healthy dialogue for the industry to have and thank you for your contribution to the debate.
Hi Mike, thanks for your thoughts.
Planning law is about controlling land use – having a Master’s of Law including in planning law as well as my GDURP, I know a little bit about it. Does not matter whether you use a by-law to restrict land use, or a DA, the result is the same.
A tenant by any other name, will still smell like an occupier – to mangle the words of the bard. Yes, short term stay tenants are tenants, (including at law) and they are also occupiers under the Act. Novel argument about by-laws not applying – never seen it run before…. I would be (more than) happy to be on the other side to it!
Resident managers, who have a letting pool, can respond immediately to tenant’s behaving badly, whether they are short term or long term tenants. That’s because, as the owners (real estate) agent, they have powers to deal with those tenants, in those lots. In the case of short term stay, that can include tossing the tenant out! How about that for effective, cheap and efficient enforcement of by-laws…
My concern overall Mike, is that enforcing by-laws against tenants, has nothing to do with length of stay – it has everything to do with bodies corporate (a) not having the right by-laws in place in the first place (b) having too much red tape to deal with to enforce by-laws and (c) the by-law enforcement process being expensive and archaic.
What about the opposite case where you have a complex that only allows short term but some owners want to live there or there are people who want to rent on six or 12 months leases but are told by the committee or the caretaker that the DA does not allow this?
How can these people be excluded but when it’s short term staying in residential apartment complexes they can not be excluded.
By this argument the committee and the caretaker have no right to exclude long term occupiers?
Hi Bradley,
That has happened on Stradbroke Island and at Noosa.
It will always depend on the site, the DA, the planning scheme etc.
I have seen this situation, with a council about to prosecute, but it then received applications for a new DA from the long term residents, the Council approved it and the long term was allowed!
MichaelK… when you say ‘Novel argument about by-laws not applying…”, is this just a polite way of saying it is misconceived or without substance?
You might be on to something Ross…
Michael,
Not so much a novel argument about a by-law not applying but a reference to s180(1) ….
“a by-law is inconsistent with another Act (i.e. Planning/Building etc) the by-law is invalid to the extent of the inconsistency.” — A STA by-law does not override DA.
Similarly, the Act defines an occupier to be ‘someone who lives on the lot’ – owner or tenant under a lease. A short stay holiday maker does not live there (Ref again to Fairways and Privy Council decisions)
I agree that planning law is about controlling land use … but those controls are exercised via the DA. The conditions of a DA (including land use) apply and carry over through successors in title until changed via a subsequent MCU. Interested if you disagree with this.
Agree 100% that by-law enforcement, in many respects, is so prohibitively costly and protracted that when followed is ultimately an inefficient and ineffective process – which is why any short stay guests could absolutely trash the common property and leave next day with impunity.
While I too hold a Masters degree and multiple other post graduate credentials, thankfully none are in law – nor do I see the relevance of your comment to this debate.
Thank you for your comments and opinions all the same.
Hi Mike,
Fairways decision relates to BUGTA schemes, not BCCM Act schemes.
It was only because of that unique feature, that the Privy Council decision became relevant.
The position under the BCCM Act is well and truly settled law – you cannot use by-laws to ban short term occupation.
I hazard that if by-law enforcement was (much) easier, then half of the seeming objections to short term accommodation would evaporate. So, bring on the changes to the Justices Act!
In my practice I have seen just as many bad tenants in long term stay as short term stay, and just as many bad owners as tenants. Its a myth that short term stay tenants are inherently bad tenants – there are people that comply with by-laws and people that don’t.
So, the solution is to fix by-law enforcement, which I think we are in furious agreement about.
(you may as well collect a law qualification as well Mike – they are fun!)
I’m not sure whether or not this has been addressed but it occurs to me as a duplex owner that should my neighbour sell to an investor who wants to lease the unit very short term and be rated by my local council, if they say that the unit is let but only pay the extra rate for an investment property, but which does not recognise that that the owner is using Airbnb platform or similar, then this would be grossly unfair to me as co-owner in various ways. Also, elderly owners in this sort of situation could very easily be bullied and not know how to handle the situation.
You are right this need to be addressed at State Level as soon as possible.