@Jane said:
This is an excellent discussion but could one or more of the legal teams please express their view on whether a short term let via a platform like AirBnB is just a license to occupy and does not create any legal or equitable interest in the property? Is it possible that short term letting is neither a lease nor a type of ‘other dealing’ and falls outside the scope of s 139 (2)?
That is a really interesting question Jane. The answer to whether something is a lease or a licence is not in legislation but in the common law. It depends on whether someone has been granted ‘exclusive possession’ of the property: Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209 . Exclusive possession is the right to exclude everyone, including the owner (as tenants can – their landlord can only come into the premises with their permission or in accordance with a provision in the lease).
Typically, if you just let a room in your apartment on Airbnb, that would not be exclusive possession and as a result it would be a licence, not a lease. But if you let the entire apartment, it is most likely granting exclusive possession and is thus a lease. That is what Justice Croft found in Swan v Uecker [2016] VSC 313 But it always depends on the agreement in question.
This creates a strange loophole. The strata legislation has never banned by-laws that prohibit or restrict licencing, probably because no one ever thought of it. It probably never occurred to anyone that an OC would try to prevent people from giving others (like family members) permission to stay in their apartment. But it does create a peculiar loophole in the law. There is no provision that prohibits OCs from writing by-laws banning licencing. However, I don’t think this provides any great assistance because a) most Airbnb arrangements are probably leases and b) even though the SSMA does not ban by-laws that prohibit licencing, I think that if a court were asked to consider the question, it would say that the ability to give others permission to be on your property is an ordinary part of owning property and cannot be infringed by an OC.