The “Airbnb” phenomenon has entered the world of strata and community title. It is one of the most controversial issues in the strata industry. Places where people live are now being frequented by strangers.
The new Strata Schemes Management Act 2015 and the previous Strata Schemes Management Act has made no provision for short term tenants. If you are a tenant, a property manager should advise the strata manager of the availability of the tenants within the building. In short term tenants with the “Airbnb” service, people come and go without warning. Strangers enter the premises, entertain themselves and then leave. They have no concept of by-laws, no responsibility with the Owners Corporation and no long term desire to maintain the relationship with the neighbours. Rightfully, Executive Committees are becoming increasingly concerned with the rise and rise of “Airbnb”.
Warning; if the Owners Corporation has a development approval for residential dwellings, “Airbnb” is unlawful. Ever since Ronald Ashley Woodlands v Sutherland Shire Council, if a building is not zoned for short term accommodation (tourism) short term accommodation is unlawful. Short term accommodation is anything shorter than 90 days.
There are two completely opposite legal issues here;
- Owners Corporations cannot make by-laws permitting “Airbnb” unless it is development approved for short term accommodation. This will require a consent authority under Section 96 of the Environmental Planning and Assessment Act, 1979 to be lodged with the local council for an alternate use of the building. Because the building is not approved for the use of short-term accommodation, any such by-law is unlawful.
- Alternatively, Owners Corporations can move by-laws to outlaw “Airbnb”. In other words, by-laws can be made prohibiting short term or executive accommodation within the premises. This can be enforced under the new law by notice of ceasing to Act or by fines issued by NCAT. There is a remedy for those who don’t want “Airbnb” within their premises. Action can be taken who do want it, but it is an extreme and costly undertaking to alter a building from residential to tourism. Moreover, to change any building from residential to tourism requires it to be a tourist zoned area.