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\n<\/picture>\n<\/a><\/p>\nBy Frank Higginson,\u00a021 Nov 2018<\/span><\/h4>\nSource:<\/strong> Hynes Legal<\/p>\nGovernments create laws.\u00a0 Courts and tribunals interpret those laws when they make decisions on disputes.\u00a0 We all then rely on those interpretations as gospel in terms of what the legislation actually means.<\/p>\n
Industry always holds its breath when what has been a long-standing practice or assumption is appealed. Higher authorities can overturn the decisions of lower ones. Take the\u00a0deck dispute<\/a>\u00a0that went all the way to the High Court, with opposing decisions along the way.<\/p>\nThe other recent example was the decision on the timing for commencement of proceedings for recovery of\u00a0body corporate debts<\/a>.\u00a0 A lower court interpreted a time frame that no one had operated by, but that was overturned on appeal.<\/p>\nThe whole argument about short-term letting in Queensland strata law hinges on section\u00a0180(3)\u00a0of the BCCM Act.\u00a0 Adjudicators have been very consistent in their interpretation of that so far as it relates to whether short-term letting is a residential use.\u00a0 We wrote about that previously\u00a0here<\/a>.<\/p>\nThe Queensland Civil and Administrative Tribunal (QCAT), which is where adjudicators\u2019 rulings get appealed, has now conclusively determined whether the interpretation adopted by adjudicators has been right.<\/p>\n
The legal position has not changed from when we first wrote about this issue, but there is some more meat on the legal bones as to why that remains so.<\/p>\n
The QCAT matter was an appeal by a body corporate about a decision made by an adjudicator in\u00a0Hilton Park<\/a>.\u00a0 That decision was consistent with previous rulings that said a body corporate could do\u00a0nothing to restrict short-term letting under its by-laws.<\/p>\nThe body corporate\u2019s arguments were relatively novel, which makes the decision all the more interesting.<\/p>\n
The key sections of the BCCM Act that were considered were 180(3) and 180(4). These are:<\/p>\n
\n- If a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.<\/li>\n
- A by-law cannot prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.<\/li>\n<\/ul>\n
The body corporate argued that the use letting of a lot (be that for short or long term) was a commercial purpose, not a residential one. If that was the case, the body corporate was not prevented from being able to regulate the use of the lot in terms of having a minimum length of tenancy (which was proposed as six months, which therefore killed off any short-term letting).<\/p>\n
For us there are some key takeaways:-<\/p>\n
Why refer to the \u2018type\u2019 of letting if there is only one type?<\/h3>\n
The member referred back to parliamentary intent when the BCCM Act and the related Modules were created.<\/p>\n
Section 180(3) was broken down into two parts:<\/p>\n
\n- If the lot can be used for residential purposes \u2013 which was clearly the case as it was approved for that.<\/li>\n
- The by-laws can not restrict the type of residential use \u2013 if residential use was meant to be permanent\/long term only, then why was the word \u2018type\u2019 included?\u00a0 That indicates there is more than one style of residential use to which a lot can be put.\u00a0 Other than long-term residential use, one of the other types is clearly short-term use.<\/li>\n<\/ol>\n
Short term letting is not restricted under the Standard Module.<\/h3>\n
There is a misconception that the Standard Module is for permanent occupation style accommodation only.<\/p>\n
The\u00a0Explanatory Note<\/a>\u00a0for the introduction of the Standard Module provides that:-<\/p>\n\u2018The policy objective of the Body Corporate and Community Management (Standard Module) Regulation 2008 (the new Standard Module) is to provide management processes for predominantly owner-occupied schemes and schemes which are a mix of permanent\u00a0<\/em>residential<\/em>\u00a0and holiday letting.\u2019<\/em><\/p>\nThere is no validity to the argument that being regulated by the Standard Module means that short-term letting can be restricted or is prohibited.<\/p>\n
Short term letting is not a commercial use for the purposes of the BCCM Act<\/p>\n
The\u00a0Commercial Module\u00a0applies where the lots in the scheme are predominantly commercial lots, which means a lot which is:-<\/p>\n
\n- used for commercial (including retail) or industrial purposes; and<\/li>\n
- not an accommodation lot or\u00a0a residential lot.<\/li>\n<\/ol>\n
A residential lot is a lot which is used for residential purposes, whether or not the lot is also an \u2018accommodation lot\u2019.\u00a0 An \u2018accommodation lot\u2019 means a lot that is either or both of the following:-<\/p>\n
\n- the subject of a lease or letting for accommodation for long or short term residential purposes\u2026, or<\/li>\n
- part of a hotel.<\/li>\n<\/ol>\n
So the government has seemingly referenced that the intentions for \u2018commercial\u2019 are retail or industrial-type purposes (which would also include office use) but that residential lots can be let for both short and long-term purposes.<\/p>\n
Holiday letting is a \u2018dealing\u2019 with a lot<\/h3>\n
When someone lets their unit, whether short or long term, they generally give away exclusive possession of it for the period of the tenancy.<\/p>\n
Section 180(4) prevents a by-law from preventing or restricting a dealing with a lot.<\/p>\n
The grant of a lease (be it for one day or 12 months) is a dealing.\u00a0 The BCCM Act prevents a body corporate from interfering with that dealing \u2013 in which setting a minimum length of tenancy in place would be.<\/p>\n
Like it or not, the only place these issues regarding short-term letting can be resolved is with the local authority and their planning rules.<\/p>\n
You can read the decision\u00a0here<\/a>.<\/p>\n\u00a0<\/p>\n
Governments create laws.\u00a0 Courts and tribunals interpret those laws when they make decisions on disputes.\u00a0 We all then rely on those interpretations as gospel in terms of what the legislation actually means.<\/p>\n
Industry always holds its breath when what has been a long-standing practice or assumption is appealed. Higher authorities can overturn the decisions of lower ones. Take the\u00a0deck dispute<\/a>\u00a0that went all the way to the High Court, with opposing decisions along the way.<\/p>\n The other recent example was the decision on the timing for commencement of proceedings for recovery of\u00a0body corporate debts<\/a>.\u00a0 A lower court interpreted a time frame that no one had operated by, but that was overturned on appeal.<\/p>\n The whole argument about short-term letting in Queensland strata law hinges on section\u00a0180(3)\u00a0of the BCCM Act.\u00a0 Adjudicators have been very consistent in their interpretation of that so far as it relates to whether short-term letting is a residential use.\u00a0 We wrote about that previously\u00a0here<\/a>.<\/p>\n The Queensland Civil and Administrative Tribunal (QCAT), which is where adjudicators\u2019 rulings get appealed, has now conclusively determined whether the interpretation adopted by adjudicators has been right.<\/p>\n The legal position has not changed from when we first wrote about this issue, but there is some more meat on the legal bones as to why that remains so.<\/p>\n The QCAT matter was an appeal by a body corporate about a decision made by an adjudicator in\u00a0Hilton Park<\/a>.\u00a0 That decision was consistent with previous rulings that said a body corporate could do\u00a0nothing to restrict short-term letting under its by-laws.<\/p>\n The body corporate\u2019s arguments were relatively novel, which makes the decision all the more interesting.<\/p>\n The key sections of the BCCM Act that were considered were 180(3) and 180(4). These are:<\/p>\n The body corporate argued that the use letting of a lot (be that for short or long term) was a commercial purpose, not a residential one. If that was the case, the body corporate was not prevented from being able to regulate the use of the lot in terms of having a minimum length of tenancy (which was proposed as six months, which therefore killed off any short-term letting).<\/p>\n For us there are some key takeaways:-<\/p>\n The member referred back to parliamentary intent when the BCCM Act and the related Modules were created.<\/p>\n Section 180(3) was broken down into two parts:<\/p>\n There is a misconception that the Standard Module is for permanent occupation style accommodation only.<\/p>\n The\u00a0Explanatory Note<\/a>\u00a0for the introduction of the Standard Module provides that:-<\/p>\n \u2018The policy objective of the Body Corporate and Community Management (Standard Module) Regulation 2008 (the new Standard Module) is to provide management processes for predominantly owner-occupied schemes and schemes which are a mix of permanent\u00a0<\/em>residential<\/em>\u00a0and holiday letting.\u2019<\/em><\/p>\n There is no validity to the argument that being regulated by the Standard Module means that short-term letting can be restricted or is prohibited.<\/p>\n Short term letting is not a commercial use for the purposes of the BCCM Act<\/p>\n The\u00a0Commercial Module\u00a0applies where the lots in the scheme are predominantly commercial lots, which means a lot which is:-<\/p>\n A residential lot is a lot which is used for residential purposes, whether or not the lot is also an \u2018accommodation lot\u2019.\u00a0 An \u2018accommodation lot\u2019 means a lot that is either or both of the following:-<\/p>\n So the government has seemingly referenced that the intentions for \u2018commercial\u2019 are retail or industrial-type purposes (which would also include office use) but that residential lots can be let for both short and long-term purposes.<\/p>\n When someone lets their unit, whether short or long term, they generally give away exclusive possession of it for the period of the tenancy.<\/p>\n Section 180(4) prevents a by-law from preventing or restricting a dealing with a lot.<\/p>\n The grant of a lease (be it for one day or 12 months) is a dealing.\u00a0 The BCCM Act prevents a body corporate from interfering with that dealing \u2013 in which setting a minimum length of tenancy in place would be.<\/p>\n Like it or not, the only place these issues regarding short-term letting can be resolved is with the local authority and their planning rules.<\/p>\n You can read the decision\u00a0here<\/a>.<\/p>\n \u00a0<\/p>\n\n
Why refer to the \u2018type\u2019 of letting if there is only one type?<\/h3>\n
\n
Short term letting is not restricted under the Standard Module.<\/h3>\n
\n
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Holiday letting is a \u2018dealing\u2019 with a lot<\/h3>\n
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