LANDMARK BODY CORPORATE DECISION

LANDMARK BODY CORPORATE DECISION

It has been just one year from our previous article on Airbnb and Body Corporate’s, (Body Corporate for Hilton Park CTS 27490 v Colin Robertson [2018]), wherein it was found that short-term rentals (such as Airbnb and Stayz) would be allowed to continue to be offered by owners in unit complexes.

However, we have been seeing headlines in the past month that are reporting on a landmark decision that was recently handed down in Queensland by an appeals Tribunal.  In Fairway Island GTP v Redman and Murray [2019] QMC 13, the appeals Tribunal has sided with a Gold Coast Body Corporate by upholding a by-law which effectively bans short term rentals within the unit complex.

It is important to realise however that there is a key difference between the two cases and outcomes. The most recent case of Fairway Island deals with a community titles scheme that is managed under the Building Units and Group Titles Act 1980 (‘BUGTA’), while the earlier Body Corporate for Hilton Park case is governed by the Body Corporate and Community Management Act 1997 (‘BCCMA’).

For context, it is estimated that out of approximately 50,000 community titles schemes located throughout Queensland, less than 300 of them are governed by the BUGTA. The remainder are managed under the BCCMA.

BCCMA, Airbnb and Body Corporates

For the lot owners who would like to continue to offer their units for short-term rentals, this recent decision appears to be no cause for worry.

The BCCMA contains specific clauses which protect a lot owners right to lawfully use their lot for ‘residential purposes’(which has been interpreted to include both short and long term uses such as Airbnb and Stayz).

Thus, it is unlikely that a Body Corporate would be successful in passing a by-law which attempts to discriminate between the types of occupiers of a lot within a scheme managed under the BCCMA.

BUGTA, Airbnb and Body Corporates

The decision has been welcomed by many, including James Nickless, the President of Strata Community Association. He stated “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”.

It is impossible to quantify how the Fairway decision will effect other strata schemes that are managed under BUGTA, but we are sure that this issue will be played out in various Body Corporate’s on the Gold Coast over the coming months and years.

Summary

Ultimately, the most recent decision from the appeals Tribunal will likely have only a minor impact on the broader short-term rentals market, with the majority of unit holders still holding the reins in relation to their units.

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.

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