Dear IsItLegal
Re: “The relationship between a host, AirBnB & guests takes the form of a lease….” No it most definitely doesn’t take the form of a lease – not in NSW at least:
NSW CIVIL & ADMINISTRATIVE TRIBUNAL (NCAT) – Notice of Order – File No: RT 15/37922
Applicant: AAA Respondent: XXX (Airbnb agreements) On 22-Jun-2015 the following orders were made:
The Tribunal notes that as between the respondent and those occupying his premises under short term tourist or visitor accommodation agreements the Residential Tenancies Act 2010 (RTA) does not apply: see, particularly, section 7 and section 8(h) of the RTA
Applicant: AAA Respondent: XXX (lastminute.com, wotif.com, bookings.com, expedia.com etc agreements) On 22-Jun-2015 the following orders were made:
The Tribunal notes that as between the respondent and those occupying his premises under short term tourist or visitor accommodation agreements the Residential Tenancies Act 2010 (RTA) does not apply: see, particularly, section 7 and section 8(h) of the RTA
Tribunal Member
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Costs about $69 I think for each application – you have to name/pay for each person separately – at the NCAT. Application is by way of the Residential Tenancies Act, not the Strata Scheme’s Management Act. You fill out a Tenancy Form obtained from the NCAT’s website and tick the box, ‘Other Person’ as the applicant, not Landlord or Lessee. (They will try to block you applying – but it can and has been done, you must be insistent and tell them there is a precedent.)
You are looking to declare the ‘Airbnb (or any other short-term) agreements’ at your property NOT Residential tenancies, under section 7 and section 8(h) of the Residential Tenancies Act. Once you have submitted all your paperwork you then go before a Tribunal Member in a hearing – it isn’t judged by an Adjudicator just on the paper submission. It is up to the Respondent/s whether or not they turn up for the hearing.
Keep using the terms: “The (Airbnb etc) Letting Agreements”…and…“They are not Residential Leases.”
Then, if your Development Consent says “permanent residential accommodation only”, and you have the Orders from the NCAT in hand, hammer your Local Council for all it is worth to get them to act against the offender. Council has to then take action in the NSW Land & Environment Court to enforce their/Council’s Development Consent. No excuses acceptable from Council. There are case law judgments and precedents which can be referenced by them.
As per Jimmy T’s earlier writings, the issue of short-term letting in residential properties is currently before a NSW Parliamentary Inquiry – submissions close on 09 November.
Good luck!