WHEN IS AN ‘AIRBNB’ RENTAL NOT A SHORT-TERM RENTAL?
Central Coast based Labor Senator, Deborah O’Neill, has hit back at critics after news broke on April 18 that she had rented out her Copacabana home (no mention of her Airbnb rentals in the ACT and TAS) from April 6-8 despite social distancing rules being in place. “All bookings made were clearly informed via automated-generated email response (Airbnb) and notice on websites (Stayz) that occupants must comply with the recent changes to the law due to COVID-19,” Senator O’Neill said. So, the landlord bears no responsibility and neither do Airbnb, Stayz or any other online booking platform. It’s neighbours of these Parliamentary and other landlords who must bear the consequences of any such action.
And what, exactly, qualifies as a residential tenancy and what falls into the category of a short-term tourist/visitor rental of a residential dwelling? The NSW Land and Environment Court (LEC) has, on multiple occasions, considered this very question. In one judgment: “The requisite degree of residential permanency was plainly not demonstrable…” The LEC also supports the “conclusion of incompatibility between the two uses”: permanent residents and short-term rentals.
Susan, an Airbnb ‘superhost’ in Sydney’s Eastern Suburbs, has a girlfriend who needs corporate accommodation for the next 2+ months. Pete Smith (former HRIA Board Member and ‘Weekenda’ CEO with 108 Airbnb listings) has referred the enquiry to Lisa Peterson, (L’Abode accommodation with 180 Airbnb listings) – “we have a few places within tha (sic) budget we can accommodate her with”.
Mary from Glenbrook had a Russian traveller leave her Airbnb three days ago: “Why is it that when an overseas guest leaves a review it doesn’t show up, it disappears down near the bottom of the list?! We’ve had several overseas guest lately but when you look at our reviews you would think no one has stayed with us for about 4 months, it annoys me!” The Russian left and a local couple checked in the same afternoon – “they are getting married this afternoon and can’t go anywhere for a honeymoon so are coming to us instead!” Airbnb same day check-out/check-in...in breach of travel restrictions, and Airbnb moves reviews so that they fall out of sight of official scrutiny?
Sarah’s clients booked via the Airbnb platform. This ‘host’ is wondering how to set up her calendar as her guests will stay for the next few months: “they are going to stay on and pay me cash, but Airbnb doesn’t know that of course.”
Sydney Residents received email correspondence today regarding short-term rental ‘reforms’ that were passed in 2018. These reforms enable owners corporations to pass bylaws by special resolution to ban short-term letting. Questions remain, which have been put to State Ministers and MPs and include:
Do the said 'bylaws' take legal precedence over and thus render obsolete:-
National Construction Codes,
Federal Disability Access Legislation,
Residential Development Approvals,
Residential Occupation Certificates,
Section 149 Certificates and Section 88B Instruments,
Restrictive covenants pursuant to Section 88E of the Conveyancing Act,
Residential Title Deeds,
NSW Land and Environment Court Orders
The proprietary rights of those who purchased property in the clear understanding that their legal contracts and purchases were for lots in residential strata buildings or single-family dwellings in residential zones.
Do the said 'bylaws' still permit anyone claiming the dwelling as their 'principal place of residence' - tenants as well as owners - to rent the property on short-term rental platforms?
The said 'bylaws' leave those in Class 1(a) single family dwellings without any method of preventing neighbouring residential properties being short-term let - yes?
Where a residential strata scheme cannot rally 75+% of owners to introduce said 'bylaws', this means that the building is 'open slather' for short-term rentals or, in order words, is retrospectively 'rezoned' as mixed use - yes?
Will financial compensation be paid to those who now find themselves forced to live amongst short-term rental clients plus pay all associated financial costs/carry loss in property value - referring specifically here to 'fraud on the minority' considerations - yes/no?
We await clarification on the status of all residential property and NSW Title Deed owners’ proprietary rights. In the meantime…