These Q&As are about stopping short term rentals such as Airbnb in Queensland strata schemes.
Table of Contents:
- QUESTION: How can we compel the strata committee to enforce council regulations regarding short-term accommodation usage, given the potential impact on our building insurance policy?
- QUESTION: In our small strata, a new owner permanently lets their unit as Airbnb, with all the pitfalls. Was this addressed in the coming legislation changes?
- QUESTION: I have a unit at Currumbin on the Gold Coast. It’s been permanently rented through the onsite manager for 20 years. Can I rent the unit myself for short-term holiday rental? Are there laws stopping me? Do I need to notify the body corporate?
- QUESTION: Our complex by-laws state we can only short-term let our property. Are these by-laws valid, considering the current rental crisis? We were considering long term letting our unit as our holiday returns are very low.
- QUESTION: The shop within the scheme holds lock boxes on behalf of lot owners to hand out to short-term guests. Our caretaker has a short-term letting license in our building. Is the shop a competitor? Can there be more than one letting agent?
- QUESTION: Can we introduce an extra levy for unit owners who short-term let their unit?
- QUESTION: Can we have a by-law that allows short-term guests, but not their additional guests?
- QUESTION: I have the management rights to manage the short-term letting in the building. Another person in my building is managing a number of apartments and letting them on Airbnb as short term rentals. What are my rights and is this a breach of my letting agreement?
- QUESTION: Is the strata manager obliged to report me to Council if I am advertising my apartment for short term letting on AirBnB?
- QUESTION: Our development is not zoned for Short Term Letting. If we apply to the council for a material change of use to Short Term Let, do we need Body Corporate approval?
- QUESTION: Do strata complex registered under a Standard Module have a better case for restricting short-term rentals than a complex registered under the Accommodation Module?
- QUESTION: Can recent decisions concerning short term letting specifically with a lot registered under BUTGA add any weight to properties registered under the BCCMA?
- QUESTION: During COVID-19 can the Body Corporate Committee close down the holiday letting and short term letting like Airbnb in our apartment block?
- QUESTION: An owner lives in one unit and uses another unit in our building as an Airbnb. They run the Airbnb out of their unit. Is it a breach to conduct a business from a unit?
- QUESTION: My unit is in a holiday destination and is listed on Airbnb. The Chairman lives on site and harasses my guests. Can he stop me from offering my unit as a short term rental?
- QUESTION: What power do we have to stop short term rentals in our building?
Question: How can we compel the strata committee to enforce council regulations regarding short-term accommodation usage, given the potential impact on our building insurance policy?
Several units in our scheme have applied to Brisbane City Council for their unit’s DA to be changed to short-term accommodation.
The council granted the DA change, stipulating that the units must now be used for STA only. However, not all units that changed their DA are being used for STA. Some rent long-term and some are owner-occupied, which breaches council DA regulations.
An inquiry with our Building Insurance Brokers advised the body corporate is responsible for strictly adhering to all local council regulations, and failure could potentially prejudice our building insurance policy.
As owners are not complying with council regulations and Development Approval rights, could this impact our Building Insurance Policy?
We have tried to get the committee to enforce compliance with council regulations, but they aren’t interested.
How do we get the committee to enforce the council regulations?
Answer: It is for the council to enforce its requirements, not the committee.
It is for the council to enforce the council’s requirements – not the committee. However, the committee should take action to resolve the issue to ensure the building’s insurance policy is not compromised.
The issue here is that by having the council take enforcement action, there is a risk that it is misdirected at the body corporate rather than the specific owners.
I would suggest that a careful approach is made to the council concerning the non-compliance with the development approval. The approach should be carefully considered to ensure that any enforcement action by the council is directed at the owners and not the body corporate. It may also be worthwhile considering if there are any by-laws that are being indirectly breached that can then be raised with the committee through a BCCM Form 1. That would enable the committee (or concerned lot owners) to progress by-law enforcement action separately.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
This post appears in the December 2024 edition of The QLD Strata Magazine.
Question: In our small strata, a new owner permanently lets their unit as Airbnb, with all the pitfalls. Was this addressed in the coming legislation changes?
We live in a residential six unit strata scheme. A new owner permanently lets their unit as Airbnb, with all the pitfalls. We’ve been told there is nothing we can do to stop this. We were hoping the new reforms would support permanent rentals and owner occupiers. Has this been overlooked?
Answer: Other government agencies regulate short-term letting, such as local Council.
The new legislation does not address the situation with AirBnB or other short-term letting. Having said that, remember there are other government agencies that regulate short-term letting, such as local Council. You may want to make enquiries with them to see if they can assist, as many local authorities around the world have been moving to regulate short-term letting.
Chris Irons
Strata Solve
E: chris@stratasolve.com.au
P: 0419 805 898
This post appears in Strata News #690.
Question: I have a unit at Currumbin on the Gold Coast. It’s been permanently rented through the onsite manager for 20 years. Can I rent the unit myself for short-term holiday rental? Are there laws stopping me? Do I need to notify the body corporate?
Answer: Whether a lot can be let out for short term letting depends on the local council requirements.
Whether a lot can be let out for short term letting depends on the local council’s requirements. You should confirm this with town planning advice or by asking the council.
The body corporate cannot impose their own rules that restrict the type of letting but may have separate requirements in relation to notifying the body corporate of who the occupiers of a lot are. To confirm this, you should check the by-laws.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
This post appears in Strata News #686.
Question: Our complex by-laws state we can only short-term let our property. Are these by-laws valid, considering the current rental crisis? We were considering long term letting our unit as our holiday returns are very low.
Answer: The by-law may be a notice to owners for a particular town planning condition.
Assuming the scheme is regulated by the BCCMA, a by-law of that nature is invalid as it contravenes sections 180(3) and 180(4) of the BCCMA, which relevantly provides:
- If a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.
- A by-law can not prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.
However, in some circumstances, such a by-law exists as a notice to owners for the purposes of a particular town planning condition.
Accordingly, even though the by-law cannot be enforced against the owner by the body corporate, it would be worthwhile confirming with the council whether there are any restrictions on permanent letting.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
This post appears in the November 2023 edition of The QLD Strata Magazine.
Question: The shop within the scheme holds lock boxes on behalf of lot owners to hand out to short-term guests. Our caretaker has a short-term letting license in our building. Is the shop a competitor? Can there be more than one letting agent?
I am the chairperson of a strata titled building in Qld. The building includes a shop within the strata boundary. I recently went into the shop and saw some key lock boxes on a shelf. A customer asked the shop attendant for a room key, and the attendant passed over a key.
I asked the attendant why they held so many key lock boxes. Owners who rent out their lots on Airbnb have arranged with the shop to serve as the designated location for their guests to pick up the keys.
Our caretaker has been granted a short-term letting licence. Would the shop handing out room keys be considered a form of letting? Can there be more than one letting agent? Can you run a business within a business?
Answer: Depending on what the by-laws provide for, the shop may have an issue competing with the caretaker as part of a letting operation from within scheme land.
Depending on what the by-laws provide for, the shop may have an issue in competing with the caretaker as part of a letting operation from within scheme land.
Owners are free to engage any person to act on their behalf as an agent (or assist them in providing services); however, it is the body corporate who is usually restricted from endorsing more than one letting agent. There may be an obligation here (depending on the by-laws) to seek to stop the competing letting from taking place from within the lot.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
This post appears in Strata News #655.
Question: Can we introduce an extra levy for unit owners who short-term let their unit?
Can a body corporate in Queensland introduce an extra levy for unit owners who are using their unit for short-term letting like Airbnb?
Brisbane City Council charge people who use their property for short-term letting additional rates. Can we do something similar?
Answer: Your neighbours can use their lots for whatever they like, as long as that use does not break the law.
First, the lawyer’s answer…. body corporate levies, more properly ‘contributions’, are the way a body corporate raises money from lot owners to pay for common expenses. Contributions are calculated based on a proposed budget of expenditure. Where the budget falls short, or an unexpected liability arises, a special contribution is raised to cover the shortfall or extra amount, as the case requires.
Contributions must be levied against lot owners pro rata their contribution schedule lot entitlements unless the contribution is for one of a few specific exemptions such as some types of building reinstatement insurance and public risk insurance of the common property, both of which are charged pro rata the interest schedule lot entitlements. The answer to this question then appears to be ‘no’, at least in the first instance even if, for example, a body corporate is incurring additional expenditure based on the Airbnb ‘use’ alone; e.g. extra pool or BBQ cleaning.
If however a lot owner uses their lot for a riskier activity, and that impacts the body corporate’s building reinstatement insurance premium, then the body corporate can adjust the premium payable by the ‘risky’ lot owner, to fairly reflect the lot owner’s risky activities versus the total risks covered by the policy. The example given in the Regulation Module is a lot owner who has a small manufacturing business in their lot, that involves storing flammable chemicals.
So, where a case can be made (typically by comparing pre and post Airbnb insurance quotes) that Airbnb use is increasing the body corporates building reinstatement insurance premium, then arguably the additional premium, attributable to the ‘riskier’ use, could be passed on to the relevant lot owner/s.
Next, the answer that needs to be said… just like you can, your neighbours can use their lots for whatever they like, as long as that use does not break the law. Queensland Parliament has not empowered bodies corporate to tax their neighbours based on how they use their lots. NIMBY’ism is bad enough in local councils – it would be a nightmare in bodies corporate armed with a taxing power based on use. Strata in Queensland is ‘community’ title and community requires patience (for example when you are driving behind elderly neighbours who are entering or exiting the car park), consideration (for example, not practising on your saxophone when your shift work neighbour is sleeping), mutual respect (for example, each occupier abiding by the by-laws, for everyone’s mutual benefit) and especially tolerance… of other people living their lives, and doing the best they can.
Michael Kleinschmidt
Stratum Legal
E: info@stratumlegal.com.au
P: 07 5406 1282
This post appears in the March 2023 edition of The QLD Strata Magazine.
Question: Can we have a by-law that allows short-term guests, but not their additional guests?
It is that time of the year again when short-term holidaymakers descend on what was built to for permanent residential owners (Standard Module). But as we all know, we seem to be stuck with short-term guests, many of whom disrupt our lives with noise and no care for our property.
So, what can be done when the onsite letting agent doesn’t want to police the activity of short term guests and the committee doesn’t want to know either. Some short-term guests come to the area to visit family and friends. As they stay in our lovely building on the river, they invite their family or friends in large numbers to come and enjoy our facilities, often taking over complete areas, especially the swimming pool and marina. Can we have a by-law that allows short-term guests, but not their additional guests?
Answer: You can’t have by-laws that apply to different types of occupants so the short answer to your question is no.
You can’t have by-laws that apply to different types of occupants so the short answer to your question is no.
However, most standard by-laws have a clause in them relating to responsibility for guests and if those guests are breaching the by-laws i.e. through excessive noise, leaving behind waste etc. it is possible that they would be in breach of the by-laws. Generally though ,by-law breach notices happen after the fact, by which time the short-term guests and renters may have moved on so it is more about taking action against the owner and trying to get them to apply limits on their tenants.
Is there a reason the committee is disinterested in the matter? Perhaps you could raise a committee motion for the next committee meeting and ask to discuss it. You could do the same at an AGM or general meeting if that was possible. You need to see if others are being impacted in the same way as you and if there is any support for trying to control the issue. If you can show that you have that then it gives more imperative to take action. For example it may not be possible to stop the guests coming to your site but it may be possible to communicate to owners and their tenants some of the issues and ways they could be eased.
William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924
This post appears in Strata News #630.
Question: I have the management rights to manage the short-term letting in the building. Another person in my building is managing a number of apartments and letting them on Airbnb as short term rentals. What are my rights and is this a breach of my letting agreement?
Answer: Each management rights agreement and CMS is different.
This can be a twisty one. Each management rights agreement and CMS is different so it is really important to drill down on exactly what they say with reference to what the person is doing. Nothing can ever really stop anyone renting out their own unit but with Airbnb, there are questions of whether they are actually an agent and whether they are breaching anything in the by-laws, particularly.
Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500
This post appears in Strata News #622.
Question: Is the strata manager obliged to report me to Council if I am advertising my apartment for short term letting on AirBnB?
Another lot owner in my building has complained to the strata manager that I am advertising my apartment on AirBnB. The lot owner insists the strata manager is obliged to report me to Council. Is it correct that 1 person in the building can make an accusation and the strata manager MUST report me to Council?
It is my understanding that if I live and run a business out of the unit, but it is primarily for residential use, I am allowed to have up to 4 persons stay on a short term basis. I don’t like being intimidated by a fellow resident when they are not in possession of the facts. How do I legally respond to the Strata Manager?
Answer: There’s nothing under body corporate legislation compelling the manager to do this.
There’s nothing under body corporate legislation compelling the manager to do this. There may be something in their contract, or under other legislation (although I doubt it). I should point out that regardless of whether the manager is or isn’t compelled to do so, it’s open to anyone to make a complaint to Council about the use of your lot. That might be another owner, a tenant, the committee, a contractor or indeed, a member of the public. The point being that it’s up to Council to decide whether or not to act upon a complaint they have enforcement power for.
You say it is your ‘understanding’ re: short-term letting. Do you know for sure what your rights and responsibilities are? If not, it might be a good idea to seek some qualified advice about it, because it is obviously an issue for you and others in your building. That would also answer your question about who might ‘legally sort this out’ for you.
Chris Irons
Hynes Legal
E: chris.irons@hyneslegal.com.au
P: 07 3193 0500
This post appears in Strata News #492.
Question: Our development is not zoned for Short Term Letting. If we apply to the council for a material change of use to Short Term Let, do we need Body Corporate approval?
We have recently discovered our 2017 development is zoned Multiple Dwelling and is not zoned for Short Term Letting. We have been letting it out for the past two years unaware of the Sunshine Coast Council zoning.
The body Corporate (consisting of mainly residents) is now threatening to report us if we continue to short term let.
If we apply to the council for a material change of use to Short Term Let, do we need Body Corporate approval. Can the council enforce what we use our unit for considering it is in a high density residential area 100m from the beach?
Answer: application to Council would require both lot owner and Body Corporate consent and a change to the current by-laws may also be required once the Approval from Council is granted.
Many owners and body corporates are often caught out by not checking the approved development application before undertaking works or in this case potentially using the unit in a way that isn’t consistent with their approval. Council will act on complaints if received, and does have the power to undertake enforcement action if you are using your unit contrary to the development approval.
Each Council in Queensland can have slightly different rules, in the case of the example provided on the Sunshine Coast, the use of a unit zoned multiple dwelling for short term letting would not be in accordance with the approved use in the development application. You would require a new development approval to change the use to allow the short term accommodation. The application to Council would require both lot owner and Body Corporate consent and a change to the current by-laws may also be required once the Approval from Council is granted.
Jordan Holman
Associate Director
Town Planning Alliance
E: info@tpalliance.com.au
This post appears in Strata News #470.
Question: Do strata complex registered under a Standard Module have a better case for restricting short-term rentals than a complex registered under the Accommodation Module?
There seems to be a move by state governments to restrict AirBnB / short term letting in strata complexes. If this was to be the case in Queensland, would I be right in assuming that a strata complex registered under a Standard Module would have a better case for restricting short-term rentals than a complex registered under the Accommodation Module?
If so, would it be worthwhile to change from the Accomodation Module to the Standard Module?
I may be wrong but it would be interesting to see what the experts have to say.
Answer: That is an interesting perspective and one that may very well be pursued.
That is an interesting perspective and one that may very well be pursued. One consideration though is that you cannot always bundle the same distinction between:
- Owner occupier against investor owners; and
- Short term tenants against all other types of occupiers.
Parliament may feel like such an approach would disenfranchise long term tenants.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
This post appears in Strata News #464.
Question: Can recent decisions concerning short term letting specifically with a lot registered under BUGTA add any weight to properties registered under the BCCMA?
The case referred to in this article was an Appeal Decision (A Magistrate sitting as a Tribunal) delivered on 18 October 2019, his Honour noting “Short-term letting is by definition not residential. To be residential there must be a resident. That is someone who lives there on a permanent or long term basis.”
That decision was further appealed to the District Court, the decision dismissing the appeal, being handed down of 27 April 2020 – effectively permitting a by-law to ban short-term letting. Whilst the decisions mentioned above dealt specifically with a lot registered under BUGTA, do the judicial remarks below add any weight to the prospect of applying the principles to properties registered under the BCCMA?
Short-term use of a house by holiday makers or other persons seeking short-term accommodation is different from longer term residential use, even though it may be difficult to draw a clear dividing line. In its ordinary meaning, to use a building for a residential purpose does not include using it for the purpose of letting it out to others (and those others using it) for holidays or other temporary accommodation.
Answer: We are talking about quite separate pieces of legislation with quite distinct legislative provisions.
It’s important to clarify that decisions taken under BUGTA, including appeal decisions, apply only to those buildings to which BUGTA applies. Which is to say, the vast majority of buildings in Queensland are not affected by the decision you quote.
We are talking about quite separate pieces of legislation with quite distinct legislative provisions, including completely separate appeal processes, so the likelihood the BUGTA outcome might get applied in a BCCM context is next to none, in my view. Read this article for more detail: 99% (or more) of Queensland bodies corporate still cannot prohibit short term letting.
Your question is probably better put to government, to see if they would consider legislative change to respond to this specific outcome and have it apply to BCCM schemes.
Chris Irons
Hynes Legal
E: chris.irons@hyneslegal.com.au
P: 07 3193 0500
This post appears in Strata News 448.
Question: Is it possible during COVID-19 for the Body Corporate Committee to close down the holiday letting and short term letting in our apartment block?
Is it possible during COVID-19 for the Body Corporate Committee to close down the holiday letting (Management holiday letting and AirBnB) of our apartment block? There are 152 units with the majority being owner residents.
Answer: There have been several adjudicators’ orders which have found that a by-law which, for example, purports to prohibit Airbnb is an invalid by-law.
I’m not sure how the committee would propose to do such a thing. In Queensland, section 180(3) of the Body Corporate and Community Management Act 1997 provides that ‘if a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.’ There have been several adjudicators’ orders which have found that a by-law which, for example, purports to prohibit Airbnb is an invalid by-law.
The body corporate may have engaged a caretaking service contractor who would, typically, also hold the authorisation to conduct a letting business at the scheme. That’s a contractual arrangement between the body corporate and that entity. Given this, and given also that those contracts are usually worth substantial amounts of money, any committee which is proposing to ‘shut down’ that business should be seeking legal advice before doing so.
Commonwealth and state and territory governments have made many directions and orders during the pandemic, including about people travelling and staying in residences other than their own. The NSW government has, for example, issued an order about short-term letting. If any of these orders are relevant for your body corporate then the committee may be bound to act upon those, although they would need to follow proper decision-making, minute-taking and communication processes in doing so and also noting my earlier comments about seeking legal advice where there are contractual matters involved.
Chris Irons
Hynes Legal
E: chris.irons@hyneslegal.com.au
P: 07 3193 0500
This post appears in Strata News #342.
Question: An owner lives in one unit and uses another unit in our building as an Airbnb. They run the Airbnb out of their unit. Is it a breach to conduct a business from a unit?
How many people can the letting agent put into a unit? Is it two per room, or two per unit? We live on the Sunshine Coast in our complex we have a mix of rentals and owner occupied units.
We have an owner who owns two units. They live in one and use the other as an Airbnb. As they run the Airbnb out of the unit they live in, is this a breach as they are conducting a business out of a unit.
Answer: Generally, by-laws are meant to regulate, not prohibit.
Body corporate legislation in Queensland does not provide for occupancy limits. This is typically a matter for the local council to advise you on. You might also want to check with Queensland Fire and Emergency Services.
Generally, by-laws are meant to regulate, not prohibit. A by-law that purports to outright prohibit an otherwise legal activity would generally be an invalid by-law if challenged, depending on circumstances. Adjudicators’ orders have consistently found that any by-law prohibiting the running of short-term letting in a lot is invalid. You’d need to check your current by-laws – and please, make sure they are in fact the current by-laws – for the wording of any by-laws about conducting a business.
If you believe the by-law is being breached you can seek to have it enforced. If you are part of the committee, you must enforce by-laws. Again, you might want to check with local council about any laws for conducting a business from home.
You may also wish to seek legal advice as there are some potentially complex legal issues at play in your queries.
Chris Irons
Hynes Legal
E: chris.irons@hyneslegal.com.au
P: 07 3193 0500
This post appears in Strata News #335.
Question: My unit is in a holiday destination and is listed on Airbnb. The Chairman lives on site and harasses my guests. Can he stop me from offering my unit as a short term rental?
I own a unit in a Queensland holiday destination. I list the unit on Airbnb as a short term rental. I have been harassed ever since the property has been let this way by the chairman of the committee who lives on site.
One of my guests informed me the chairman/resident was rude to them when they parked in the driveway in front of my garage just to unpack before putting their car away in the garage. Do I have any legal rights to prevent this from happening again in the future? Can the Chairman do anything to stop me from offering the unit as a short term rental?
There is another resident’s car which is almost always parked in front of their own garage in the common area. It just seems there are double standards here.
Answer: The BCCMA specifically prohibits a by-law from restricting the type of residential use to which a lot can be put.
There is not much a body corporate can do in relation to preventing Airbnb – perhaps that can be pointed out to the chairperson. We’ve written about that here: QLD: QCAT considers short term letting by-laws.
Otherwise, by-laws need to be complied with by all occupiers whether that be short term or long term occupiers. It is not an argument that others are breaching the by-law so I can to, but equally so the committee cannot selectively enforce the by-laws.
Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500
This post appears in Strata News #264.
Question: What power do we have to stop short term rentals in our building?
I own a few units in a large strata scheme in Queensland. Our committee has discovered that some owners are advertising their units online as being available for short term lets, and our community and committee are concerned about the wear & tear to the building, plus other things like security.
The committee approached our body corporate manager about the issue. They were seeking advice on how to stop short term rentals from occurring, only to be told that the law specifically forbids a Body Corporate to limit the way in which a lot owner lets a property, therefore the Body Corporate is unable to take any measures to kerb short term letting.
We are wondering – surely this statement is incorrect? Either way, what can a strata scheme do to prevent Airbnb and the like in QLD strata schemes? Can you tell us how to stop short term rentals in our building?
Answer: The BCCMA specifically prohibits a by-law from restricting the type of residential use to which a lot can be put.
The BCCMA specifically prohibits a by-law from restricting the type of residential use to which a lot can be put. If you can live in a lot, the by-laws cannot restrict the living in it to a period of three months or more (as many try to do).
Building classification (class 2/3) is as dead as the dodo in terms of trying to impose limitations around tenure of occupancy too.
The only forum is planning – being your local Councillor. Local authorities are the bodies that regulate the use to which property can be put. If the town plan is specific in terms of short term occupancy rights then you may have a cause for complaint. If it doesn’t, then you more than likely don’t. This is just yet another example of the law being far behind what is actually happening out there in the real world in terms of the digital economy.
Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500
This post appears in Strata News #110.
Have a question or something to add to the article? Leave a comment below.
Read next:
- Strata & Airbnb: How to stop Airbnb in your building
- QLD: Oppressive or Unreasonable – QLD Strata Bylaws
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With this issue of Building Classification very relevant in our 18month old Class 2 complex, the question beckons, “what is the purpose of having Building Classifications if they are just going to be ignored?”
As it is, I can see no difference in the use of 2’s and 3’s albeit many in the construction of each. There is a clear difference in the construction of each, but not in the use apparently
If we are going to have a Class 2 buildings used as a Class 3, (and anyone who is fair dinkum will understand the “intent’ of the BCA/NCC with regards to Classification buildings) then why bother? Sure saves the Developer a stack of money at construction time.
We have failed to have Sunshine Coast Council explain this other than to have them ‘condone’ the practice of Class 2 Buildings being used as Class 3.
Regarding the Q&A about short-term letting on the Sunshine Coast in breach of the planning laws. This already is a live issue up there; a new complex, about 2-years old, was served with a Show Cause Notice earlier this year. Most of the units are owner occupied, but a few are being openly operated as a defacto hotel. The investor/owners tried to submit a group appln for Change of Use w/o referral to, or permission from, the Body Corporate.
This got knocked on the head by Council. I have been advised by a very experienced Planning and Environment lawyer that, unlike the Brisbane City Council and the Gold Coast Council, the Sunshine Coast Council actively pursues breaches of its planning requirements. This includes new complexes, ie those constructed since 2014, not specifically approved for short-term rentals. Finally, one Council is doing what it is supposed to do.
An accurate and worthwhile comment Ross and only half the story.
Council officers that fail to enforce the relevant provisions of the Planning Act (sections 163, 164 and 165 each carrying $600,000 penalty or $1.8M in total) as relating to unlawful short term letting are on a slippery slope also.
These 3 sections are executive liability provisions of section 227 that similarly expose council officers if they fail to enforce once aware of the imminent risks that exceed those of Class 2 buildings (apartments). The lowest risk class that can lawfully accommodate transient accommodation is that of a Class 3 building.
So what does an aggrieved owner do if they wish to continue this unlawful practice? 2 options.
A. Stop the letting and abide by the law – Building Act; Planning Act and BCCM Act etc.
B. Pay a potential $1,800,000 penalty if prosecuted … and then stop.
What should they not do?
A. Believe the spin and misinformation on this topic propagated by strata lawyers and management rights industry –
B. Attempt to gain a resolution without dissent required to register a new CMS under s62 of the BCCMA after having expended likely millions to upgrade the entire build to class 3 specification.
The mis-informers of the Qld Strata are once again attempting to divert enquiry from the facts …. If I see another comment so feebly pointing at s180(3) I will pewk.
The issue of lawfulness of short term accommodation in Qld apartment buildings was ‘Done and Dusted’ long ago when they were built and certified according to the respective DA of the day.
The Gold Coast city plan categorises ‘Short Term Accommodation’ (a defined Land Use) as a NON RESIDENTIAL land use. Therefore, any DA (or By-Law) for Residential Use Only is contravened.
Quite simple really … problem lies in that many strata lawyers have rarely been in the P&E court I suspect … so will therefore only assume to comment with authority.
How many motions can an owner put in to each AGM?
One owner has put in as many as 33 Motions at an AGM, in fact from 5 to 33 motions over 12 years increasing each year.
This Owner has been on Committee but resigned when she called an EGM to be held at our Complex and NO ONE turned up to her Meeting.
This Owner Disrupting meetings and Recording Meetings on the Owner’s Own Personal electronic Device – and taking away Recordings – even though attendees at the Meetings do not want Minutes to be Recorded by Owner.
Owners do not have an Issue with B.C.M. recording Minutes. Thank You.
Hi Irene
Regarding the number of motions, this has been addressed in the new regulation modules which commenced on the 1 March 2021. Details of the changes can be seen here: QLD: A Meeting of the Minds – Submitting a Motion to the Committee in our recent QLD Webinar.
Regarding the other issues, we will come back to you shortly.
Hi Irene
The following response has been provided by Chris Irons, Hynes Legal:
Body corporate legislation doesn’t restrict someone recording a meeting. For information about any other restrictions regarding recording and the issues about using that recording, you might want to contact the Office of the Information Commissioner.
I’ve read the commentary above and have nothing further to add except, earlier this year 10 Chinese individuals arrived from China and stayed in Airbnb in Broadbeach, Qld. I understand that they were the first people to bring Coronavirus with them to Qld, and as a result it spread and 2 people passed away. Therefore, it appears that health concerns will be more important than financial gain for everyone – particularly vulnerable citizens.
You are spot on Julie. Unfortunately we see this all through society … commercial interests putting profit before people.
I can claim to being a ‘close contact’ of 30% of Qld covid 19 fatalities (having disembarked Voyager of the Seas on 18 March – the day before Ruby Princess). Walked of without passport leaving my pocket or any health check onto the street and flew home.
I can further add that Tom Hanks and wife also stayed in that same Broadbeach Airbnb about 3 weeks later and also contracted it ….. Somehow I think you would be hearing more had they died.
While also a Residential apartment building, it is operated and marketed by a foreign multinational corporation as a ‘[removed by Admin]’. Sshhh … unlawful short term letting only if we get caught out … councils know but will continue failing their duty to act until a coronial inquest the like of childers demands so.
Our homes are not hotels but each Gold Coast apartment tower may as well be a Ruby Princess standing on end and being allowed to operate by complicit council officers it appears.
I believe this should go to the QLD Crime and Corruption Commission as it is so blatant.
Perhaps QLD should open its borders only when NSW open theirs to international cruise ships again.
Sounds fair and reasonable … let them walk the walk first.
Thanks Nikki
I am not surprised.
Mike Murray for PM! or at the very least Minister for Lawful Management of Community Title Schemes.
What a knowledgeable and reasonable enquiry as to the veracity of short term accommodation in Class 2 building schemes and compliance with Local and State Regulations. A pity Development Compliance Officer appear to not understand or don’t implement their own local and state regulations – if they did it would be ‘game over’ for unlawful short term letting!
Thank you Mike for your lesson in living with logic and owner-occupier empowerment in residential strata schemes.
Roger
Because of the corona virus it may be dangerous to have short term lets in your building putting residents’ health at risk.
THE OWNERS CORPORATION COULD ALERT THE TAX OFFICE THEY ARE ALWAYS INTERESTED. LOCAL COUNCILS DESIGNATE UNIT BLOCKS AS RESIDENTIAL SO SHORT TERM LETS CHANGE THAT TO COMMERCIAL. THIS CAN INCUR HIGHER RATES AND HIGHER INSURANCE.
DIANA NEUBACHER
Sorry Frank – you’re wrong, DIANA is Right
Tenuous reliance upon the tired old 2013 Docklands case is misinforming readers. If readers here actually read the case they will realise how flawed this purported catch all reference is.
Beyond the above you appear to offer little more clarity than a few adjudications an QCAT decisions. Each of these pertain to specific circumstances of schemes and if examined (as you rely on readers not to), also fail the catch-all ‘by-law’ argument.
We all know 180(3) can’t restrict the type of ‘residential use’ – we can all read.
However, your misleading messaging wrongly assumes and implies ‘short term accommodation’ is a type of ‘residential use’. This is factually wrong and might I suggest somewhat dishonest for someone who ought know better to propagate.
Please refer to Planning regulations with regard to Zoning and Land Use.
‘Short Term Accommodation’ is a defined Land Use and categorised as a NON-Residential in Qld. Game Over.
This position is supported by the 2019 High Court of Australia decision in Pike v Tighe… and further supported by the Privy Council decision defining ‘Residential Use’ and based on NSW strata law.
Unless you are able to provide more authoritative cases than Hilton Park, Macleay Towers or Lynkim Lodge as pertaining to just their specific by-laws or changes thereto ….
Furthermore, bylaws only pertain to ‘occupiers’ and exclude investor owners and holiday guests who can (and do) flout them with impunity. Check out the definition of ‘occupier’ in the BCCM Act … if you are not so familiar with its content.
… I suggest a public retraction of your apparently biased messaging be made in this forum and the above substantive case law be acknowledged as definitive….
… or as you may prefer the Short Term Letting debate is ‘Done and Dusted’.
PS. This writer hold a seat on the QBCC stakeholder advisory panel. In 2013 the ABCB issued a guidance clarifying Class 2 v Class 3 intended use. This guidance explicitly states short term letting and holiday accommodation can only occur in a Class 3 building. Tenure of occupancy if very different to type of use. Game Over again!
I would caution any owner or committee turning a blind eye to permit short term accommodation in a class 2 residential apartment build and suggest they review the executive liability provision of the Planning Act (Qld) 2016 along with their insurance implications. Penalty exposure of $1.2M individual and $6M corporation (ie the body corporate).
Although Qld has so far avoided its own Grenfell Tower tragedy due to such Unlawful Use (see s165 Planning Act) … the sad tragedy upon us all is that COVID19 entered Qld via such Unlawful Use by 9 chinese tourist in an Airbnb in the Oracle building Broadbeach.
Hi Mike
This response from Frank Higginson:
I have nothing further to add to what I have already said and I will simply leave it at that.
If you buy a residential apartment (ie class 2) it is NOT a hotel (class 3), and has never been allow to operate lawfully for ‘short term accommodation’ of any kind – airbnb, stayz, booking. com and alike.
Residential Use and Short Term Accommodation are both defined land uses under the Planning Act Qld. and are mutually exclusive – Residential > 3 months / STL < 3 months. Game Over … or you risk $1.2 Million penalty under sections 164 and 165 of the planning act (likely more than the unit is worth)
Before placing too much stock in responses of F Higginson or C Irons of Hynes (who ought know better) refer to the definition of 'occupier' in schedule 6 of the BCCM Act.
… 'a resident owner or resident lessee of the lot, or someone else who lives on the lot'.
Prof William Duncan overseeing the Qld Property Law Review published a paper that asserts short term accommodation (airbnb and alike) is not a lease but rather a licence to occupy as it does not provide exclusive property right to occupy, no bond or security of tenure for either party.
See High Court of Australia of Pike v Tighe determining that Land Use rights on an MCU (Material Change of Use DA) attach to the land and carry forward to successors in title.
The 56 units referred to are not White Elephants as they can be lawfully let to permanent tenants via an RTA lease as was intended by the original development approval.
However, there is a Huge Elephant in the room at Hynes that Frank or Chris either can't or more likely choose not to see ….
…. the meaning of 'residential use' as referred to in property law is well settled as high as Her Majesty's Privy Council, but also the High Court of Australia and the Supreme Court of NSW.
Therefore, don't believe all you hear from self professed experts … the more you learn about any topic the more you realise there is to know.
Hope some facts help and you source a good long term tenant before a 1.2M penalty from council.
The council want short term letting and oppose long term or owner occupier
The building is Class 3 and the zoning is residential 3.
Can i ask what your field of expertise is please.
Hi Janice,
The circumstance you describe clarifies. Being Class 3 means your building is built to the higher standard of safety and amenity required for use as a hotel, short term accommodation or permanent occupancy as a residence.
While ‘council’ (precisely who purports to represent themselves as being ‘council’ is the question) may ‘want’ STL, it was also ‘council’ that approved the development in a ‘residential 3’ zoning.
In Qld, ‘Short Term Letting’ is a defined Land Use under planning law but is categorised as a ‘Non-Residential’ Land Use. Accordingly, the zoning of ‘Residential’ would preclude any ‘Short Term Accommodation’ use from lawfully occuring in your building – and exposure to 1.2 million dollar penalty under sections outlined earlier. [Review High Court of Australia case of Pike v Tighe]
Finally, I would caution against placing too much stock in unqualified commentary from personel of ‘XXXXX Legal’ as simply a business name. such persons could well be past public servants or interested cleaners and I caution their commentary being regarded as ‘legal advice’.
It may surprise you to learn that, while we assumed most are, BCCM adjudicators, Commissioners and even QCAT members, are not required to hold any formal legal qualifications whatsoever – they can be lay people such as you and I, who demonstrate sufficient knowledge and experience to perform their role.
Consider this: In every courtroom in every case, solicitors and barristers on both sides get paid obscene amounts of money – irrespective of the outcome. It can therefore be deduced that 50% of them get paid all this money to be wrong.
In response to your final question.
I am no more qualified than an informed lot owner with 23 years experience in the Qld strata industry.
I understand the above is not what you would wish to read, however, it is as accurate and as direct advice as I am able to provide.
Hi Mike
We have received this response from Frank Higginson, Hynes Legal:
The position has been conclusively decided by QCAT in Queensland as we wrote about here. The building classification issue was decided in Docklands in Victoria, where it was held that a building being classified as class 2 or class 3 effectively had had nothing to do with the tenure of the occupant. If the arguments being proposed had merit, someone would have run them. They haven’t. There is a good reason for that – because they are baseless.
how tiresome this all is … having to correct self professed experts. I followed the link to ‘HERE’ as conclusively decided by QCAT in Queensland — or as some wrote.
The statement: ‘Holiday letting is a ‘dealing’ with a lot is false.
This has been established in the district court of appeal (Qld) by Barlow with reference to the Land Title Act. (Fairways Island case)
The writer, who now knows the statement is FALSE, will unlikely amend or remove the post but more likely allow such misinformation to propagate on these forums.
Let’s allow readers to determine the veracity of the posts of this commentator and consider the credibility of others as also being potential misinformation to the sector.
We have a slightly different situation. Our buildings of 56 accommodation units was approved at the planning stage as 56 building accommodation units and 1 managers unit There is no mention in the approval of short term letting, tourists or travellers. But the council is insisting that this was the original intention and an error was made in the writing of the judgement. We have had a legal opinion that intent cannot over ride the final legal definition but the Council is sticking to their opinion and warning that penalties will be imposed if their directive is not followed. Restricting the occupancy to holiday letting like this is extremely difficult financially for owners especially in this current climate as they just have to stay empty. Most of the owners are Mum’s and Dad’s and along with all other expenses like BC fees and Council rates etc they have outgoings of approximately $13k a year for a white elephant. And in current times cannot afford further expense of fighting this in court. Is there a Govt dept that could over ride the Council.
Hi Janice
We have received this response back from Chris Irons, Hynes Legal:
While I very much appreciate you don’t want the stress or hassle of legal proceedings, you do need to be realistic here. On one side, you have legal advice supporting your position. On the other hand, you have a regulatory body – council – taking the opposing view. Short of agreeing upon a negotiated outcome or an alternative dispute resolution process, your only option would be to have this determined in the appropriate jurisdiction. Until you do, the status quo remains.
You ask if there’s a government agency which can override council. Council is constituted and provided with powers under legislation like a body corporate is. You could always contact the relevant department with your concerns, or approach the relevant Minister.
Re the question “They run the Airbnb out of their unit. Is it a breach to conduct a business from a unit?”
Running a business out of a unit may or may not be a breach of the body corporate’s by-laws. However, running a rental property is not running a business.
This response from Chris Irons, Hynes Legal:
Hi Ross, that’s a good point. Again though it depends on the circumstances. Important to also clarify that while letting one’s own lot may not be ‘running a business’, letting out other’s people’s lots might be. As might providing services in relation to letting those lots. For example, I know that there are people who get paid to meet guests at an Airbnb on behalf of the host. This might require some legal advice if in doubt.
An interesting position Ross. Fair Trading Victoria clarifies on their website as follows:
‘Holiday accommodation, such as hotels, motels, and bed and breakfasts, are not classified as rental accommodation. Instead, they are classified as a service and regulated by the Australian Consumer Law.’
The question arises as to whether the airbnb operator would be considered a PCBU (person conducting a business or undertaking) under the W.H.& S. laws.
It is because paying guests also pay GST through these booking sites and also use the common facilities under a commercial arrangement with the accommodation provider – it is most likely this would be considered a business or undertaking.
The ATO also have a ruling on criteria for determining commercial residential premises. I suggest those interested look it up.
maybe you could stop being whiny and realise that people want to use airbnb type accomodation.
Like you Greg, I like to use airbnb type accommodation …. but don’t want strangers sharing my home and its common facilities. many people want to use nuclear power also … will you kindly accommodate the reactor in your back yard?
The UOAQ recently obtained advice that in Brisbane it is necessary for an owner to apply to the council for a change of use before short term rental may be exercised.