What Can Body Corporates Ban?
No, not really, but this is where some want body corporate laws to head.
There are many laws that affect community living, but the one that people most often overlook is the law of unintended consequences.
The ongoing battle about bodies corporate having the right to prohibit short-term letting has attracted a lot of attention, some of which has been nothing but clickbait. At the core of this though is a fundamental principle: what right should a body corporate have to regulate what goes on behind a property owner’s front door?
One day it’s short-term renters barred from the building – next, it’ll be a blanket ban on singing in the shower.
Yes, I get that is an extreme leap, but in all seriousness, where does it end?
Giving body corporate committees the ability to be complete regulatory overlords of their own strata kingdoms is a slippery slope to which there is no visible end in sight.
I can hear the clattering of angry fingers hitting keyboards out there already, but hear me out. I am not advocating for short term letting. I don’t have a stake in Air BnB. But I do have real concerns with giving body corporate committees unfettered rights to decide what goes on behind people’s front doors.
When it comes to the occupation of lots, if we are giving bodies corporate the ability to regulate occupancy (and in effect usurping the power of local government), let’s also consider the other side of the same occupancy coin.
If a body corporate can regulate the right of someone to occupy a lot (which is really what prohibiting a form of rental is), can it prohibit long term occupants, which heaven forbid, includes owner-occupiers?
Is that really where we are heading with this?
I know of quite a few buildings in North Queensland tourism hotspots who would love the right to prohibit long term occupants.
The current legal position under the BCCM Act is a body corporate can regulate:
- What happens on common property and parts of a lot the that the body corporate must maintain; and
- Conduct inside a lot that interferes unreasonably with others in the scheme.
Outside those parameters, I think it is hard to argue that a body corporate should have the ability to dictate what happens inside a lot. If my singing in the shower causes a nuisance (which it most definitely would) then the body corporate will have actionable rights in that respect. There is nothing anyone should be able to do about it otherwise, as much as they might dislike singing in the shower generally.
The issue is conduct. If an occupier is causing such havoc that their conduct interferes unreasonably with the use and enjoyment of others, then there is a long-winded process with respect to by-law enforcement that can be undertaken. The conduct obligations and enforcement process applies to everyone: owner-occupiers, as well as short term and long term tenants. These do need beefing up. There does need to be more immediate consequences for bad behaviour – for both the tenant and the owner who allows that to take place (which was canvassed in this issues paper).
The last small rider is that the level of misconduct needs to interfere ‘unreasonably’ with others. ‘Reasonable’ interference is therefore not something that is actionable. Community living involves compromise. There are going to be moments where people’s amenity is disturbed. This is no different to living in suburbia. It happens.
There are more than 25,000 active short-term rentals listed in Queensland. If people want to restrict the Airbnb’s of the world, the place to start is with local council planning regulations, and not through body corporate by-laws. Giving bodies corporate planning rights that overside local councils is not the answer.
Proponents of increasing body corporate powers need to be careful for what they wish for. At some stage, they might not be the ones in power….
All the best for the year and decade ahead.
The content in this paper is intended only to provide a general overview. It is not intended to be comprehensive nor does it constitute investment nor legal advice. You should seek professional advice before acting or relying on any of the content.
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