Hold your horses: Body Corporate ban on Airbnbs unlikely to impact most Queenslanders

Written on the 5 November 2019 by David Simmons

Hold your horses: Body Corporate ban on Airbnbs unlikely to impact most Queenslanders

A landmark legal decision upholding a ban on Airbnbs in certain strata title complexes is unlikely to impact the broader industry.

For the first time in Queensland, a by-law banning short-term letting or Airbnb within a Gold Coast community has been successful.

The decision in the case of Fairway Island GTP v Redman and Murray is certainly ground-breaking, but only for a tiny minority of Body Corporates in the state.

According to Hynes Legal partner and strata law expert Frank Higginson, the fallout from the Fairway Island decision will be minimal.

Fairway Island on the Gold Coast's Hope Island is governed by different legislation to the majority of strata communities in Queensland.

Most strata title schemes in Queensland are actually governed by the Body Corporate and Community Management Act 1997 (BCCMA), while Fairway is governed by the Building Units and Group Titles Act 1980 (BUGTA).

Higginson says communities governed by the BCCMA will not face the same consequences as those under BUGTA, especially considering only a tiny minority of the more than 50,000 strata communities will be impacted.

"This decision will give a false sense of insecurity to a lot of people who want to continue using their units or apartments as short term letting in their buildings," says Higginson.

"The reality is that the legislative framework that this body corporate was successful under does not apply to them."

"There are more than 50,000 Bodies Corporate in Queensland. This decision would apply to probably less than around 200."

Under the BCCMA Bodies Corporate are restricted in terms of which by-laws can be applied to owners.

Specifically, under the BCCMA a by-law cannot restrict the type of residential use, or discriminate between different types of occupiers, meaning those using apartments or units as Airbnbs can continue doing so, as long as they are governed by the BCCMA.

"For example, inside a BCCMA apartment I can't create a by-law forcing owners to paint a feature wall in their bedroom pink, and that is exactly the same from a letting perspective," says Higginson.

"If I want to let it for a short or long term, provided council allows me to do it from a planning perspective, I can do it. Then the only thing that matters is whether my occupancy or my tenants interfere unreasonably with other people's use and enjoyment of their lots."

"The Body Corporate can't dictate who you rent to, and the manner in which you rent."

"This is supported by the BCCMA which very simply provides at subsection 180(3) that if a lot may be used for residential purposes, the by-laws cannot restrict the type of residential use to which it is put. And yes - that catches all of those 'no lettings under three months' and 'no schoolies' by-laws. These are simply unlawful and unenforceable."

Despite this, SCA President James Nickless is optimistic about the precedent set by the Fairway Island decision.

"We're pleased to see common sense prevail in this case and a body corporate empowered to enact and enforce by-laws which are true to their community values," says Nickless.

"Under conservative legislation, we see many bodies corporate throughout Queensland unable to regulate their community with meaningful by-laws, due to the restrictions in place on what by-laws can and cannot do."

"While we don't wish to criticise the BCCMA or the processes in place, we believe the outcome of this case is encouraging for bodies corporate in Queensland, and we hope the State Government is watching closely."

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Author: David Simmons

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