Can we create a bylaw banning Airbnb?

In the interests of clarity and ease of reading, these posts were moved from THIS TOPIC about the validity of holiday letting by-laws – JimmyT.

By laws may be the only way forward but these should be worded carefully and should not be overly restrictive or prohibitive. An OC would probably have more success legally with ‘regulating’ rather than ‘prohibiting’ short term holiday letting, as is explained in the legal commentary below.

Some commentary from Bannermans Lawyers about short term letting in strata which may be helpful is outlined here:

“These problems can be severe enough for a strata owners corporation and other lot owners to consider taking legal action to curtail such activities within their building. This can be difficult, but there are things which owners corporations and lot owners can do:

• Attempting to persuade the local Council to enforce planning laws can be a useful avenue, but this is dependent on the relevant planning laws and a motivated council. In many cases, individuals can bring their own actions to enforce planning laws, but this can be cost prohibitive, suggesting the need for council to be the driving force. There were cases decided by the courts several years ago, which found that short-term lettings can involve development, requiring development consent. That resulted in many councils rewriting local environment plans. Planning laws in relation to short-term lettings now vary widely from council to council. Even if particular arrangements breach applicable planning laws, some councils are more enthusiastic than others about enforcing them.

• Making a by-law restricting such activities may be an option, but until the courts have considered the issue, this is a grey area and such a by-law might not be enforceable. The difficulty is that the strata management legislation prevents a by-law from prohibiting or restricting a lease or other dealing relating to a lot and that there is doubt about what this actually means. The limited case law to date suggests that these types of arrangements probably can be restricted by by-law. Of course, the more moderate the by-law, the more likely it is to be enforceable.

• A by-law regulating such arrangements, but not prohibiting them, would be more likely to be enforceable, particularly if the regulation was moderate. For example, such a by-law might involve prohibition of letting without development consent (if required), OC approval being required for lettings outside specified parameters, e.g. length of stay, number of guests or to blacklisted guests (previous troublemakers) and the owner being responsible for ensuring compliance with by-laws, including any additional behaviour and other requirements imposed by the particular by-law.

• A by-law outright prohibiting short-term lettings would be less likely to be enforceable, but less so if the definition of “short-term letting” is reasonably tight.”
• https://www.bannermans.com.au/strata/articles/strata/441-airbnb-is-your-strata-building-becoming-a-party-hotel

It would be best to seek help from a lawyer. Some suggestions that may have sufficient ‘teeth’ …..  As an example, a definition of  ‘short term’ in a by law may be  ‘a period of time that is not less than 7 nights and not greater than 90 nights’. This definition has restrictions but is not overly restrictive.  This definition would not permit people to stay in the building for a any time that is less than a week – hopefully should deter the bucks party crowd! Longer minimum periods could also be used (i.e. 10 nights) but must not be too long or they would be deemed to be too restrictive.

A by-law regulating ‘short term’ letting  could make permission conditional on certain actions being undertaken by the owner e.g.

(1) that the owner obtains a written guarantee from each and every person using his apartment on a ‘short term basis that the person using the apartment and the common property will comply with all of the building by-laws such as no smoking on common property, noise, nuisance, parking, damage to common property etc, and 

(2) for permission to be granted to an owner by the OC to allow ‘short term’ letting that an owner (or an agent of the owner) must agree to be responsible for the behaviour and conduct of the people in their ‘short term’ accommodation at all times and must (a) provide the owner’s or agent’s phone contact details to the EC and (b) must be contactable by the EC 24/7 and (c) must be proximate enough to the building to immediately go to the building when advised by the EC that a breach has been committed by the person in the ‘short term’ accommodation, and (d) must agree to personally and immediately evict the people in the ‘short term’ holiday accommodation at any time of the day or night should the person in the ‘short term’ accommodation be breaching any by laws, and (e) must agree to the possible revocation for a period of 6 months of the permission granted by the OC  if the owner is found to be in breach of this by law.

All the responsibility would now fall on the owner and not the OC. It would become the responsibility of the owner to ensure that the people using his apartment comply with all of the by-laws, and it would be the responsibility of the owner to discipline them if they don’t.

The owner would be in breach of the ‘short term’ letting by-law and would face a financial penalty, and the possible revocation of the ‘short term’ letting permission, if the person in his ‘short term’ accommodation created a nuisance etc and was not removed by the owner or the designated agent.

Maybe worth considering????