Part 1- No short-term stays in stratas? 

There has been a frenzy of media coverage on the issue of Airbnbs recently, from the Minister of Tourism indicating that the sector is ripe for regulation, to disputes in the Supreme Court of Jamaica, surrounding whether Airbnbs can be allowed in certain gated communities. As far as the latter issue is concerned, the prohibition of short-term rentals (“STRs”) in gated communities is not new. It is also important to note that Airbnb is just one online platform through which persons may offer these STRs, but due to its prevalence, the name has become synonymous with STRs. 

The legal regime around the prohibition of STRs differs depending on the legal nature of any given community. This two-part series will look at the prohibition of STRs in strata communities (communities governed by the Registration (Strata Titles) Act (the “Act”)), and in non-strata communities, the legal structures for which vary.  

The Registration (Strata Titles) Act

The Act prescribes how strata communities are to be governed, which includes requiring all proprietors of strata lots, in a strata corporation, to abide by its by-laws, which are essentially the rules and regulations of any given strata. With STRs gaining popularity, many strata corporations have sought to allow or disallow them by amending their by-laws accordingly.  

Strata owners have attempted to challenge whether or not by-laws can rightfully prohibit owners from using their strata lot as STRs. This is because Section 9(4) of the Act states that:- 

“No by-law shall operate to prohibit or restrict the devolution of strata lots or any transfer, lease, mortgage or other dealing therewith…”.

Owners have attempted to contend that this provision would make any by-law seeking to restrict strata lots being used as STRs, in contravention of the Act. The matter was considered in a 2019 hearing before a tribunal of the Jamaican Commission of Strata Corporations. 

The tribunal found that the by-law in question which read:- “A Proprietor shall not use his Strata Lot… nor shall any trade or business be carried on there but the proprietor shall use his lot for the purpose of a single private residence only” was not inconsistent with Section 9 of the Act. 

The tribunal in coming to its decision considered the Privy Council case of O’Connor (Senior) & Others v the Proprietors Strata Plan No. 51 [2017] UKPC 45, an appeal from the Turks & Caicos Islands, the English case of Caradon District Council v Paton (2001) 33 HLR 34, and the Australian case of Byrne v The Owners of Ceresa River Apartments Strata Plan 5597 [2017] WASCA 104, which all looked at the meaning of “private residence.”

The following excerpt from Byrne sums up whether or not “short-stay accommodations” were allowed under a by-law that provided that a lot must be used as a “residence”, and formed the basis of the tribunal’s decision to find that STRs were not allowed by the by-laws in question:- 

“…Whilst proof of permanency of abode or ‘extended or substantial’ occupation of a place may be evidence of a settled or usual abode, in our view, the word ‘residence’ in this context more accurately denotes a settled or usual abode. Whether someone is occupying a lot for use as their settled or usual abode will, generally speaking, be a question of fact. On the other hand, some uses will necessarily fall outside the phrase ‘use his lot as a residence’. Thus, a lot occupied by persons who merely use the lot as tourist accommodation, or as accommodation for holidays or other breaks away from their settled or usual abode, is not being occupied by persons who use the lot as a ‘residence’ within the meaning of by law 16… (at para 151)

…But the word ‘residence’ does not itself import a fixed period of occupation. The prohibition in by-law 16 is not on periods of occupation, but on use… (at para. 152)

…The effect of by-law 16, on its proper construction, is that a proprietor may only use, and any occupier to whom the proprietor grants occupancy rights may only use, the lot as a settled or usual abode and not otherwise. … By-law 16 does not operate relevantly as a restraint on alienation contrary to s 42(3) of the Strata Titles Act, but as a limitation on use. (at para 154)”

Therefore, in summary, where by-laws of a strata corporation prevent the use of a strata lot for any trade or business, or require that the lot be used as a residence only, STRs would most likely be in contravention of such by-laws. 

Silent By-Laws vs. Not-so-silent guests

What happens when the by-laws are silent on the issue of STRs? Not all stratas are residential, and even then, not all residential stratas have by-laws that expressly prohibit STRs. If there is no express prohibition, then there is generally no problem, however, this may not be the case if a particular STR is operated in a way that creates a nuisance. The First Schedule of the Act sets out by-laws that apply to all strata corporations that cannot be amended. Section 1(e) of the First Schedule dictates that a proprietor shall not use his strata lot, or permit it to be used in such a manner or for such a purpose that shall cause a nuisance to the occupier of any other strata lot. Whether or not the operation of a STR would cause a nuisance is a matter of fact to be determined in each case, but arguably, consistent loud noise or music, which is a feature of many STRs being used by holidaymakers, may constitute a nuisance. 

Where an activity, such as STRs, is in contravention of a strata corporation’s by-laws, the Commission of Strata Corporations may issue an order requiring the cessation of the said activity. 

If you are a strata lot owner, or looking to become one, by buying into a strata, you must make yourself familiar with the by-laws of the strata corporation. It is advisable to have an experienced attorney-at-law conduct a review of the by-laws to ensure that any activities you intend to carry out in the strata lot, would not be in breach. Similarly, strata corporations that wish to allow or disallow STRs, should engage an attorney-at-law to see to the process of amending their by-laws accordingly.