WA: Q&A Airbnb or Short Stay Letting in Strata Apartments

This article is about Airbnb or short stay letting in WA strata apartments.

Table of Contents:

• QUESTION: If there is no bylaw for our building prohibiting short term letting, and the local council has no restrictions. Can owners short term let?
• QUESTION: If we propose a bylaw to allow short term lets and the bylaw is rejected, would this open the gates to allow us to stop short term lets in the building?
• QUESTION: Can a WA unit in a Retirement Village for over 55’s be rented out as short stay? The apartment is being rented out during holiday periods via platforms such as Airbnb. People letting the premises are not always over 55 or retired.

Question: If there is no bylaw for our building prohibiting short term letting, and the local council has no restrictions. Can owners short term let?

There is no by-law in my Western Australian block of flats prohibiting short-term (eg Airbnb) lettings. However, Schedule 1 of my by-laws does say:

LEASING OF LOTS

Prior to the leasing of a lot the proprietor shall before the commencement date of the lease –

1. Inform the strata company of the name of the proprietor’s managing agent for the lot (if any) and the name of the lessee. This information shall be recorded on the strata company roll;
2. provide the lessee with a copy of the strata company by-laws;
3. provide to the strata company a copy of an executed and stamped lease and ensure that such lease states that any non-compliance with the by-laws of the strata company shall default under the terms of such lease.”

Does this by-law apply to, and or prohibit short-term tenants such as Airbnb or is it only relevant to tenants with a long-term lease under a Residential Tenancy Agreement?

The local council does not appear to have any short-term letting restrictions.

Answer: The most obvious disagreements with short term letting is the overuse of common property facilities and the comings and goings of people at all hours of the day a night.

When in doubt, consult the by-laws…

Schedule 1 Duties of Owner

1. The owner of a lot must —
   
   1. notify in writing the strata company immediately on becoming the owner of the lot, including in the notice the owner’s address for service for the purposes of this Act; and
   2. if required in writing by the strata company, notify the strata company of any mortgage or other dealing in connection with the lot, including in the case of a lease of a lot, the name of the lessee and the term of the lease.

Also, be familiar with what is in the Act as well…

Section 105 Roll to be kept by strata company

4. The particulars to be entered in the roll are —
   
   1. the name of the strata company; and
   2. the name and address for service of each member of the council, or officer, of the strata company; and
   3. the name and address for service of the owner of each lot; and
   4. the name and address for service of each strata manager of the strata company; and
   5. the name and address for service of any lessee or tenant of a lot notified to the strata company; and
   6. the name and address for service of any mortgagee of a lot notified to the strata company.

So by implication of the requirements of the Act, there is a requirement to keep a roll of the tenants who have a lease.

The most obvious disagreements with short term letting is the overuse of common property facilities and the comings and goings of people at all hours of the day a night. I have no doubt that the additional noise created would disturb the peaceful enjoyment of other owners who reside in the strata scheme.

Some Local Councils have their own use requirements for residential strata schemes in that the purpose of the building is not zoned for accommodation on a short term basis.

A by-law specifically banning short term use should or could be registered if it is correctly approved at a general meeting of the strata company.

Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au

This post appears in the March 2023 edition of The WA Strata Magazine.

Question: If we propose a bylaw to allow short term lets and the bylaw is rejected, would this open the gates to allow us to stop short term lets in the building?

In our old WA strata complex, a few owners let their units via Airbnb. There is no bylaw relating to short stay lets. We are looking to introduce a short stays bylaws. Would this decision need a resolution without dissent? The owners letting out there lots would object.

If we propose a bylaw to allow short term lets and the bylaw is rejected, would this open the gates to allow us to stop short term lets in the building?

Answer: The first step is to consult your local council, to determine their position.

The definition of short-term rentals according to the Government of WA is:

All premises, or rooms within premises, available as temporary accommodation but are not traditional accommodation properties. The majority of short-term rentals have been built for residential purposes in areas zoned for residential use, but have subsequently been offered for short-term letting, usually for the purposes of recreational, business or other travel. Short-term rentals are not always licensed and/or registered (e.g. Air BNB).

Each local council in WA has their own by-laws. Some local councils have bylaws specific to short-term rentals.

The State Government continues to progress initiatives to better manage the short-term rental accommodation sector within Western Australia, via changes to the States planning system and the future introduction of a state-wide central registration scheme. For further information regarding the progress of these initiatives please see Short-term rental accommodation reform.

One of the proposals for consultation includes a ‘cap on nights’ for un-hosted accommodation, where dwellings rented out for a designated number of days per calendar year do not require development approval. Any premises used for more than the designated amount of days will be considered used for holidays and will require development approval, unless the local government chooses to extend this exemption via a change to its local planning scheme.

The draft planning policy is part of the McGowan Government’s response to the recommendations of the 2019 Parliamentary inquiry ‘Levelling the Playing Field – Managing the impact of the rapid increase of Short-Term Rentals in Western Australia’.

Under the proposed registration system, providers of short-term rental accommodation within Western Australia would be required to register their property to operate and advertise, including on online booking platforms. Owners would receive a unique registration number, which would need to be advertised alongside the short-term rental.

If your scheme is considering the implementation of a Short-Term Accommodation bylaw, ultimately the terms would need to reflect the current legislation to ensure that they’re not invalid;

• There was no power to make them
• They are inconsistent with the Strata Titles Act – or any other law
• They are unfair, discriminatory, oppressive or unreasonable etc

In essence, if the local planning scheme (a written law that isn’t the STA) doesn’t allow short stay accommodation, and the strata company has a by-law that does allow it, the by-law is invalid. The first step is to consult your local council, to determine their position.

Thereafter, I recommend seeking legal advice to create the Short-Term Accommodation by-law, to ensure that it’s construction reflects not only the above, but the determination of any State Administrative Tribunal ruling on the matter.

ESM Strata
E: mchurstain@esmstrata.com.au
P: 08 9362 1166

This post appears in Strata News #631.

Question: Can a WA unit in a Retirement Village for over 55’s be rented out as short stay? The apartment is being rented out during holiday periods via platforms such as Airbnb. People letting the premises are not always over 55 or retired.

Answer: As to Short Stay accommodation, there are Local Council zoning requirements that are required to be complied with.

Over 55 strata schemes were covered under section 6A of the old Strata Titles Act. Restrictions, in general, are now covered in section 21 in the new Strata Title Act.

Any old strata schemes that were covered under section 6A still continue on and these are covered under the transitional provisions of the Act, Schedule 5 Clause 18.

The main thing is that the occupants must be over 55 or the wife or spouse of someone who is over 55.

Any occupancy that is contrary the to provisions stated in the Act would be in breach of those conditions.

As to Short Stay accommodation, there are also Local Council zoning requirements that are required to be complied with.

The strata scheme may not be zoned for Short Stay.

There have been a number of SAT applications where short stay use has been stopped as by-laws that have been registered require that the residence is used for that purpose: a “residence” which is someone’s permanent place of abode.

Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #537.

Have a question about Airbnb or short stay letting in WA strata apartments or something to add to the article? Leave a comment below.

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