Bylaws needed to bar use of condo for Airbnb rental
Q: I own a condo unit in a 100-plus unit condominium complex. I am renting the unit out as a short-term rental on Airbnb. Some of the owners have expressed their dislike of short-term rentals and have asked the board to make some amendments to the bylaws that would ban short-term rentals. Can the board prevent me from renting out my unit on Airbnb? Please help!
A: The short answer is, maybe! Short-term rentals in condominiums through online services such as Airbnb or Vrbo are touchy issues. A decision of the Alberta Court of Queen's Bench clarifies the status of short-term rental tenants, stating that such arrangements where no residential tenancy lease is entered into, results in the functional equivalent of a hotel stay, where the guests/tenants are not residential tenants of the owner, but occupy the unit as licensees for consideration.
A residential lease grants certain rights in the lands to the tenant. The same is not true with licences to occupy units, as a licence creates no interest in the land itself. And here is the key to answer your question: as there is nothing in the Condominium Property Act that specifically prohibits condominiums from restricting short-term rentals (as opposed to residential tenancies), short-term rentals are a permitted use of an owner's unit unless the applicable bylaws say otherwise. My guess is that your bylaws are not clear on this point, hence the push for amendments. Check your bylaws!
Helpful Hint: The decision of the Court of Queen's Bench in respect of short-term rentals is sound in my view. A condominium corporation has the power to restrict short-term rentals, but only if the restriction is set out in the bylaws. A condominium corporation cannot, by board policy or rule, restrict an owner's use of their unit. Any valid restriction on the use of units must be in the bylaws.
Roberto Noce, Q.C. is a partner with Miller Thomson LLP in both the Edmonton and Calgary offices. He welcomes your questions at albertacondolaw@millerthomson.com. Answers are not intended as legal opinions; readers are cautioned not to act on the information provided without seeking legal advice on their unique circumstances. Follow Noce on Twitter at @Robertnoce.