No, section 49 does not apply in these circumstances. My understanding is that the restrictions on by-laws that interfere with people “dealing” with their property are actually quite narrow. They prevent you from passing by-laws that would stop you selling your apartment or letting it out in ways that were otherwise legal and acceptable.
However, if a building was zoned or even just deemed to be residential, you could argue that short-term letting was illegal anyway and so you would not be breaching strata law by specifically banning short-term lets. To give an analogy, if you were to pass a by-law banning owners from renting their properties for a business offering sexual services, that would not be a breach of section 49.
The Land and Environment Court has recently ruled in the Bridgeport scandal that “residential” means lets of no less than three months. In fact, unless the building was specifically designated, with council zoning, as designed for short-term lets, you probably should pass a by-law restricting lets to residential.
Why? Because even if there are only two or three airbnb lets in the building, if it is zoned permanent residential they are breaking the law. More importantly, they are the thin end of a rapidly growing wedge. More than half the apartments in NSW are tenante. As soon as owners, or even renters, discover they can make more in a weekend from holiday lets than they do from a full week’s rent, those small numbers in your building will spread.
Then you will have all the usual strata issues – such as noisy neighbours and people who don’t ‘get’ they way things are done in your building – multiplied exponentially and without any simple means of redress because the ‘guests’ have moved on before a complaint can be officially raised.
Airbnb started out as way of people travelling cheaply and enjoying a richer travel experience because they were staying with locals. Now it is predominantly a money-making exercise in which no one – including the multi-billion dollar agency – takes any responsibility for the behaviour of the tenants but the permanent residents of the buildings have to deal with the consequences.