A Gold Coast body corporate has become the first in Queensland to legally ban Airbnb – but industry insiders are warning unit owners not to spend money seeking a similar outcome.
Southport Magistrates Court has upheld a by-law banning short-term letting at the Fairway Island development on Hope Island Resort in a decision welcomed by Queensland Strata Community Association president James Nickless but slated by other leading industry figures.
Only a small minority of bodies corporate are governed by the same regulations as Fairway Island under the Building Units and Group Titles Act 1980 (BUGTA), which is in the process of being replaced by the Queensland government.
Most of the state’s strata title schemes are now governed by the Body Corporate and Community Management Act 1997 (BCCMA), legislation championed by the Australian Resident Accommodation Managers Association (ARAMA) for creating a balance between the interests of unit owner occupiers and owner investors.
ARAMA president Trevor Rawnsley says he is concerned unit owners governed by the BBCMA might be persuaded to launch costly and futile legal battles in the belief that the decision is relevant to their property.
“Anyone who suggests that this will be allowed to transfer across to BCCMA is being misleading” he said.
Hynes Legal strata law expert Frank Higginson said the 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”.
He added: “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, a by-law can’t restrict the type of residential use or discriminate between different types of occupiers.
“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,” said 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.”
While the scope of the decision is limited, James Nickless says the SCA is “pleased to see common sense prevail in this case and a body corporate empowered to enact and enforce bylaws which are true to their community values”.
“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,” he said.