Short-Term Letting: Body Corporate By-Laws and Council Regulations

With the prevalence of hosting websites such as “AirBnB”, “Workaway”, and “YouCamp”, many local home owners and tenants have seen the opportunity to earn a little extra money.  Depending on the location of your home and the website on which you choose to host, there are a few issues that may arise.

Body Corporate By-Laws

A property regulated by a body corporate may be required to abide by by-laws as well as council regulations when choosing to host short term tenants.  There has been discussion in the courts surrounding whether short-term letting constitutes a residential or commercial use of a property.  The Body Corporate and Community Management Act 1997 section 180(3) provides that if a property may lawfully be used residentially then bodies corporate cannot restrict the type of residential use.

Recent decisions of the Queensland Body Corporate and Community Management Commission, including Macleay Tower & Villas, First Avenue Mooloolaba, and Lynkim Lodge, discussed by-laws restricting occupation of lots within the schemes to a minimum of three (3) months.  In each instance the adjudicator made the finding that short-term letting is a residential use of a property and as such unable to be restricted by by-laws.

While a body corporate cannot restrict the length of a tenant’s stay in your property, your guests will be required to abide by the other valid by-laws contained in your Community Management Scheme.  These may include by-laws relating to carparking, pool use, and noise levels depending on the individual Scheme in place.

Council Regulations

Whether your property is in a body corporate or not, there will also be local Council regulations to follow.  As with any other law, Council Schemes and Local Laws are legislative instruments requiring compliance.  For example, the Whitsunday Regional Council has regulations for back-yard camping which would restrict the ability for someone to utilise “YouCamp”.

Mackay Regional Council

If you wish to run a short-term rental in the Mackay region you may be required to apply for a “Shared Facility Accommodation” licence.  This generally applies to fully commercial back-packers and bed & breakfast facilities but may apply to your short-term letting accommodation if that is the sole use of the property.

Whitsunday Regional Council

The Whitsunday Regional Council recently voted to adopt an “AirBnB Compliance Strategy”.  An information kit was released on their website on 4 October 2018 and provides the strategy in which to ensure your short-term letting complies with regulations.

You do not require Council approval if:-

1. You reside in the property and let out rooms in your home where:
   1. The use is conducted from a dwelling house, within the main dwelling;
   2. No more than three (3) private bedrooms are used for guest accommodation;
   3. No more than six (6) guests are accommodated at any one time
   4. Guests stay no more than fourteen (14) consecutive nights
   5. Guests have access to a separate bathroom and toilet facility to the residents; and
   6. A minimum of one (1) parking space must be provided per guest bedroom; or
2. You are letting your property or a room in your home for a minimum of three (3) months as per an agreement under the Residential Tenancies and Rooming Accommodation Act 2008.

You do require Council approval if:-

1. You reside in the property and the conditions contained above are not met; or
2. You do not reside at the property and wish to lease for a maximum of three (3) months stay.

Applications will be determined by Council on a case by case basis in respect of the zoning, building and developmental codes, and other factors.  You may be required to attend to amendments to the property to reach these codes.  If you wish to make an application or require further information, please click here.

Other Considerations

As with any other use of your property, it will be prudent to check with your insurer if you are covered for anything arising out of short-term letting.  You may also wish to discuss with your accountant the GST ramifications of using your home to generate income.  If you are not an owner occupier, it will also be important to ensure that your Lease Agreement allows for the short-term subleasing of a room in your home.

In Conclusion

Ultimately, your body corporate and your local Council cannot completely prevent you from becoming a short-term letting host.  If you are having any issues with your body corporate or any council regarding short-term letting please contact one of our experienced Property lawyers today.