Can a Body Corporate restrict the use of AirBnB?

September 21, 2017 3:36 pm

It’s no secret that most Body Corporates strongly oppose the use of their lots for short-term letting. There are a number of legitimate reasons for this, short-term occupants:

  1. Are more likely to create disturbance within the scheme generating more noise and traffic;
  2. Are less likely to be aware of and comply with by-laws; and
  3. Use the facilities such as pool, BBQs and gyms more often, causing extra costs of maintenance, increasing levies.

This issue is becoming more and more common because of the ease of lot-owners to self-manage the letting using online services such as AirBnB.

If you own the unit and are not breaching any town planning regulations, you should have the freedom to self-manage the short-term letting of your unit, right?

Let’s see what a Body Corporate could try to do:

Create a by-law that specifically prohibits short-term letting of lots?

This is not an option as Sect 180(3) of the Body Corporate and Community Management Act 1997 (Qld) provides that:

If a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use.

How about a by-law that specifically prohibits short-term occupants from using the pool, BBQ and gym?

Also not an option, Sect 180(5) of the Act provides:

A by-law must not discriminate between types of occupier.

Ok, so if the short term occupiers use more of the facilities, can we charge the owner higher levies to compensate the other permanent occupied lots?

Negative, Sect 180(6) provides:

A by-law (other than an exclusive use by-law) must not impose a monetary liability on the owner or occupier of a lot included in a community titles scheme.

But surely if a short-term occupier is breaching a by-law with respect to noise or parking it can be enforced?

Yes of course, but to enforce any by-law there is a very lengthy process of enforcement that can take many months to finalise. The issue here is that the short-term occupants usually only stay for a few nights then they are gone!

To sum up, there is nothing a Body Corporate can do through their existing by-law framework to deny or restrict the use of any lot in the scheme being short-term let. This is just another instance where the legislation is failing to keep up with the “sharing economy” which includes other services such as Uber.

For any further information or discussion, please contact me at Law Solutions – 07 4051 4430