The ability for unit owners to rent out their units for short term accommodation via sites such as ‘Airbnb’ or ‘Stayz’ has long been a grey area, with many body corporates attempting to stop these types of rentals from happening by attempting to enforce by-laws which have been explicitly drafted to exclude short term rentals. It has been an ongoing tug-of-war between unit owners and Body Corporates, with each vying for the ‘winning’ position.
It appears that the ‘winner’ has now been determined, and the recent decision of the Body Corporate for Hilton Park CTS 27490 v. Colin Robertson [2018] by the Queensland Civil and Administrative Tribunal has provided clarity for unit owners by ruling that they are legally entitled to offer their units for short-term rentals (through schemes such as Airbnb or Stayz) and that any attempt made by the Body Corporate to restrict such use by way of a by-law or other means is invalid and will not be enforceable.
In arriving at his decision, Member King-Scott relied on s180(3) of the Body Corporate and Community Management Act, which essentially states that by-laws cannot restrict the type of residential use of the lot if the lot may lawfully be used for residential purposes, and because the term ‘residential’ has not been clarified or defined, it is to be read in the broadest sense and therefore permits any residential use of the lot.
As can be appreciated, this decision will no doubt ruffle the feathers of body corporates/committees in complexes throughout Queensland, as well as permanent residents who are not likely to appreciate their neighbours changing on a regular basis. Further, it is also likely to catch incoming purchasers off-guard, who are presumably not aware of this recent decision (and of the argy-bargy that has been occurring within complexes for some time) and who have purchased with an expectation that their complex does not allow short term rentals.
Of course, there are always exceptions to the rule and this may not apply to all properties. If in doubt about its applicability, enquiries would need to be made with the local Council to determine whether the property could in fact be excluded from being able to provide short term accomodation under the applicable zoning for the property.
Our professional legal team at Affinity Lawyers are well placed to provide you with advice in relation to body corporate matters, whether you are a lot owner, member of the body corporate or an interested purchaser, and we are happy to answer any questions you may have in relation to your rights, obligations or entitlements. Feel free to contact our Gold Coast law office on 5563 8970 to arrange your appointment.
