Australia: Recent cases and issues with short-term property letting

Last Updated: 16 October 2017
Article by Rebecca Castley

IN BRIEF: With the increasing popularity of Airbnb accommodation services and recently proposed legislative changes in Victoria, there are a number of recent cases and issues to consider that have arisen with short-term letting and owners corporations.


In Macleay Tower & Villas [2017] QBCCMCmr 12, the body corporate passed a resolution to include a new by-law which provided that any residential tenancy in the scheme shall be permitted only for a minimum term of three months.

The issue before the adjudicator was whether this by-law was valid and enforceable. The issue considered was whether short-term tenants are occupiers under the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act), and whether they use the property for 'residential purposes'.

Section 180(3) of the BCCM Act states that if a lot may lawfully be used for residential purposes, by-laws cannot restrict the type of residential use. Additionally, section 180(1) of the BCCM Act states that if a by-law is inconsistent with the BCCM Act, it is invalid.

The adjudicator found that short-term tenants were occupiers under the BCCM Act, based on past decisions of adjudicators and QCAT Short-term tenants were also found to put the property to residential use, based on the definition of 'residential property' in Schedule 6 of the BCCM Act.

As a result of these findings, it was ordered that the part of the by-law which mandated the length of residential tenancies was invalid and should be removed from the by-law.

There have also been several Victorian cases concerning these issues, the most significant being Salter v Owners Corporation PS501391 and Owners Corporation v Balcombe [2016] VSC 384.


In Salter v Owners Corporation PS501391P, it was found that an owners corporation [equivalent to the body corporate in Queensland] of an apartment complex could not prevent short-term occupants having access to common recreation areas, as the proposed reason for preventing access was not for the purpose of security or to protect common property.

Short-term occupants were subsequently allowed to access all the common areas of the apartment complex except the gymnasium area. This was because there was a valid by-law created by the Owners Corporation which mandated that any person who wanted to access the gymnasium area had to undergo an induction by a personal trainer.


In Owners Corporation v Balcombe [2016] VSC 384, it was found that an owners corporations did not have the power to prohibit short-term letting.

In the Supreme Court of Victoria, Justice Riordan found that a rule created by the owners corporation of an apartment complex to prohibit short-term letting was inconsistent with the powers that Parliament intended owners corporations to have, as per the Owners Corporation Act 2006 (Vic).

Additionally, Justice Riordan found that the Subdivision (Body Corporate) Regulations 2001 (Vic) did not confer the power to regulate this sort of conduct on the Owners Corporation.


The most significant changes in this area are happening in Victoria, due to decisions being handed down in the above high-profile cases and the introduction of the Owners Corporation Amendment (Short-stay Accommodation) Bill 2016 (Bill).

The Bill defines a "short-stay accommodation arrangement" as a "lease or a licence for a maximum period of 7 days and 6 nights to occupy a lot or a part of a lot affected by an owners corporation."

The Bill provides that owners or occupiers of a lot can make a complaint to the owners corporation about the conduct of a short-stay occupant (s 159A(1)). If the owners corporation decides to take action against the occupant, they must give notice of the conduct to the lot owner and/or the short-stay provider. The notice must specify the alleged conduct, the person to whom it is given and that they are required to rectify the conduct.

With the Bill giving new powers to the Victorian Civil and Administrative Tribunal (VCAT), the owners corporation can now also apply to VCAT to try and resolve the dispute in relation to the conduct of the short-stay occupant. The following orders can be granted:

  • Prohibition order, which prohibits the use of a lot or part of the lot
  • Civil penalty order (maximum penalty $1,100)
  • Loss of amenity compensation order in favour of an occupier of another lot which can be made for conduct which interferes with the other occupier's ability to peacefully enjoy their lot and common property, such as:
  • creating loud noises
  • behaving unreasonably
  • unreasonably obstructing other occupiers from enjoying common property
  • using a lot or common property in a way that causes a hazard to the health and safety of another occupier

The maximum compensation that can be awarded is $2,000 to each affected occupier for each breach.

The owners corporation must report any complaints about short-stay occupant conduct to the annual general meeting.

The Bill has been passed by the Legislative Assembly, but has not yet been passed by the Legislative Council. The Legislative Council referred the Bill to the Environment and Planning Committee, who published an inquiry into the Bill in June 2017. The inquiry stated that the Bill did not address many key issues adequately, so further amendment of the Bill is likely.

Recently there has been an inquiry into the adequacy of short-term letting regulations in New South Wales. In response to the inquiry, the New South Wales Government has agreed to consider amendments to strata regulations to give owners corporations more powers to manage and respond to adverse behaviour resulting from short-term letting. The New South Wales Government has also decided to review the impact of short-term letting in the strata environment in five years' time.

It still remains to be seen whether something similar to the Victorian Bill will be proposed to the Queensland Parliament.

Rebecca Castley Julia Hewitt
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Rebecca Castley
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.