Sainte Maxime [2005] QBCCMCmr 631 (14 November 2005)

Last Updated: 16 January 2006

REFERENCE: 0513-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17859
Name of Scheme:	Sainte Maxime
Address of Scheme:	38 Woodroffe Avenue MAIN BEACH QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

The Body Corporate,

I hereby order that the application for an order to restrict the type of residential use for lots within the scheme which are made available for lease or letting for accommodation purposes whereby lots must be for long term residential purposes only and cannot be made available for short term holiday letting is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0513-2005

"Sainte Maxime" CTS 17859

THE SCHEME

Sainte Maxime is a subdivision of 28 lots on a Standard format plan. The Regulation Module applying to the scheme is the Standard Module.

APPLICATION

By application received by this Office on 21 July 2005, the Body Corporate for Sainte Maxime seeks the following order of a adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

To restrict the type of residential use for lots within the scheme which are made available for lease or letting for accommodation purposes whereby lots must be for long term residential purposes only and cannot be made available for short term holiday letting.

BACKGROUND

The order sought by the applicant is to effectively restrict the use of lots to long term residential purposes and to prohibit short term holiday letting. In the grounds (Part 8) of the application the applicant states:

The committee is very concerned that one owner now wants to let his unit through an outside letting agency as a holiday unit.

The applicant submits that Sainte Maxime was developed in 1994 as a residential building without provision for an on-site management and was marketed as being suitable for owner occupation. In support, the applicant refers to By-Law 26 which provides:

Use of Lots

A proprietor or occupier of a lot shall not use that lot or permit the same to be used otherwise than as a private residence nor for any purpose that may cause a nuisance or hazard or for any illegal or immoral purpose or for any other purpose that may endanger the safety or good reputation of persons residing within the parcel.

Pursuant to section 243 of the Act, a copy of the application was distributed to all lot owners for comment. All responses supported the application and raised concerns regarding short term letting of lots including possible excessive noise nuisance and lack of respect for property by short term holidaymakers.

JURISDICTION

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-
(a) a claimed or anticipated contravention of the Act or the community management statement; or (b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or
(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

DETERMINATION

The order sought by the applicant is to effectively prevent owners leasing their lots for short term holiday purposes. In support, the applicant mentions By-Law 26 of the community management statement which purportedly imposes limitations on the use of a lot by an owner i.e.

A proprietor or occupier of a lot shall not use that lot or permit the same to be used otherwise than as a private residence nor for any purpose that may cause a nuisance or hazard or for any illegal or immoral purpose or for any other purpose that may endanger the safety or good reputation of persons residing within the parcel.

The wording of the subject by-law is somewhat ambiguous insofar as it refers to "use as a private residence". I do not believe that this necessarily means that an owner is prohibited from renting the unit for short term residential purposes. For example it is arguable that "use as a private residence" could encompass occupation by owners, long term letting and even holiday letting in circumstances where the owner does not provide on site services to the occupants.

In any event however, I do not believe that the Act permits the prohibition of short term rentals. Section 169 of the Act sets the parameters of body corporate power to make by-laws. Under that section, by-laws may only provide for the administration, management and control of the common property and body corporate assets and the regulation of the use and enjoyment of lots, common property, body corporate assets and services and amenities supplied by the body corporate.

If there is any doubt in this regard, such doubts are dispelled by section 180 of the Act which contains numerous limitations on the content of by-laws and provides as follows:

180 Limitations for by-laws
(1) If a by-law for a community titles scheme is inconsistent with this Act (including a regulation module applying to the scheme) or another Act, the by-law is invalid to the extent of the inconsistency.
Example for subsection (1)-- If a by-law for a community titles scheme purporting to give a body corporate manager, service contractor or letting agent exclusive use of common property is inconsistent with the regulation module applying to the scheme, the by-law is invalid to the extent of the inconsistency.

(2) Subsection (1) does not apply to an inconsistency between a by-law and a local law if the inconsistency is about keeping animals on scheme land.

(3) If a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.

(4) A by-law cannot prevent or restrict transmission, transfer, mortgage or other dealing with a lot.
Examples-- 1. A by-law can not prevent the owner of a lot from leasing or mortgaging a lot.
2. A by-law can not prevent the sale of a lot to a person under or over a particular age.

(5) A by-law must not discriminate between types of occupiers.
Example-- A by-law can not prevent a tenant from using a pool on the common property.

Accordingly, I am unable to make the order sought and it is my view that concerns raised by the applicant would need to be addressed by enforcement of by-laws dealing with issues such as noise, vehicles, obstruction and nuisance.