Many schemes in South East Queensland have had issues with lot owners leasing their lots using AirBNB or other similar service providers.
The BCCMA prohibits by-laws that restrict the leasing of units or restrict the type of residential use that can be made of the unit. By-laws seeking to prohibit the short term letting of units are therefore invalid. Whilst other legislation (Planning Act 2016) may mandate no short-term accommodation on your scheme, a by-law to directly enforce the correct usage has been found to be invalid on multiple occasions.
As part of the development approval of a scheme, the permitted use of scheme land will have been determined by the applicable local council with regard to their specific local planning code. For example, in Sunshine Coast Council, a scheme may be approved as ‘Multiple dwelling’ or ‘Short term accommodation’. Short term accommodation is defined in the Sunshine Coast Planning Scheme 2014 as ‘Premises used to provide short-term accommodation for tourists or travellers for a temporary period of time (typically not exceeding three consecutive months) and may be self-contained’.
For a fee, a local council will supply a letter that identifies the usage permitted by your scheme. If the reply identifies that short-term accommodation is not permitted on your scheme, then there is a pathway for the Committee to enforce. If short-term accommodation is permitted, the pathway is limited to investigating with local council whether a Material Change of Use of the development could be contemplated.
We have worked with UOAQ (Unit Owners Association Qld) and their legal experts to craft a by-law that we consider may not fall foul of the Body Corporate police.
1. All owners acknowledge that ‘short term accommodation’ is not a permitted use of lots within this scheme’s development approval (as identified and as such term is understood in the attachment marked ‘XX’), and that the body corporate and all owners must comply with all applicable laws and regulations, at all times.
2. If the committee becomes aware that a lot is being used for ‘short term accommodation’, the committee may, by resolution, carry out any or all of the following actions:
a) advise the relevant owner of the lot that ‘short term accommodation’ is not a permitted use of a lot within this scheme’s development approval (as identified and as such term is understood in the attachment marked ‘XX’) and demand an immediate cessation of the use of the lot in such manner;
b) report the usage of the lot to the XYZ Council requesting enforcement action;
c) issue a notice of breach of this bylaw to the relevant lot owner;
d) obtain necessary body corporate approvals to commence (or defend against) proceedings in a court, tribunal or forum of competent jurisdiction, including (without limitation) the Queensland Planning and Environment Court and/or the Magistrates Court in relation to the enforcement of the provisions of this by-law and/or any other applicable law and/or regulation.