The Weekly FAQ: advice on Airbnb landlord rights, selling tenanted homes and absentee land taxes.
Samantha is a Sydney-based real estate and home improvement writer. She is currently Head of Marketing at OpenAgent.
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Tenants listing properties on Airbnb: landlord rights
Q: My question is regarding a tenant listing a property on Airbnb. As a landlord, what rights do you have? - Sam
A: Hey, Sam. Since there are no federal laws governing rentals in Australia, laws can vary in each state. Most lease agreements require tenants to obtain reasonable written landlord consent in order to sublease. What’s murky is understanding whether a request to sublet on Airbnb is considered reasonable.
To date, reasonable consideration has included requesting the financial or rental history of potential subtenants, which doesn’t fit well into the hotel-like framework of Airbnb.
"It seems then that unless the law changes, you can refuse a tenant’s request to list on Airbnb."
The easiest way to deter tenants from listing your property is to add an explicit clause referencing Airbnb (and possibly Gumtree, HomeAway and Stayz as well) to your lease agreement. Many real estate agencies are now doing this, with the clause stating that tenants are not to use Airbnb without the written consent of the landlord in each instance.
If you don’t currently have a clause like this in your lease agreement and your tenants are listing your property on Airbnb without your consent, we would encourage you to speak to your real estate agency about your options.
Selling a tenanted apartment: what should I do?
Q: Hi, I have a CBD apartment and would like to sell it. I currently have a tenant, but don’t know whether I should renew the lease incase a possible owner occupier wants to buy it and not an investor. Do you have any suggestions? - Richard
A: Hi Richard, thanks for your question. If you’re looking to sell your property with tenants on a long term lease, you might deter buyers who are looking to move in as soon as possible. On the other hand, having trustworthy tenants already in place can be a big selling point for an investor.
In order to cast the widest net possible, you might not want to issue a new lease agreement. If your current tenants are currently renting outside of their fixed-term lease and are on a rolling periodic agreement, then you’re able to issue a 30-day notice of termination if you sell to an owner-occupier buyer.
This can be done if both of the following conditions are met: you’ve exchanged a contract for sale with the buyer and the contract requires you to give ‘vacant possession’ to the buyer.
If you sign a new fixed-term agreement before you sell, then you cannot terminate your agreement for sale of the premises and the new buyer must honour the fixed-term. If your lease agreement is periodic, then an investor who buys the property will become a landlord from settlement date of the property and they can choose to either a) introduce a new lease agreement or b) continue with the period agreement.
Find out more about this here.
Absentee Land Taxes in Queensland - do they apply to me?
Q: I’m an Australian citizen residing in New Zealand. I’m looking at purchasing an investment property in Queensland with it becoming my retirement home in 10 years. The QLD Government have recently introduced a yearly ‘absentee’ tax. Does this affect me? What other taxes would I be liable for? - Josh
A: Hi Josh, according to Property Law Today, it sounds like you could be affected by the Absentee Land Tax Bill. For the purposes of land tax, an ‘absentee’ is someone who does not ordinarily reside in Australia. The Office of State Revenue will consider several factors to determine whether you usually live in Australia during the financial year or not.
You would be deemed an absentee if in the last financial year you:
- Were away from Australia at 30th of June; or,
- Have been away from Australia for more than 6 months in total during the financial year before 30 June.
You won’t be classed as an absentee landowner if you’re:
- A public officer of the Federal or State Government and you’re absent due to the performance of your duties; or
- Working for your employer in Australia for at least 1 continuous year before you went overseas and have been directed by your employer to continue working for them overseas for a period less than 5 years.
Other taxes that you may be liable for greatly depend on your situation. For this reason, we would encourage you to speak to a Queensland-based property lawyer so you’re able to purchase an investment property with confidence.
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