These are the raw versions of my Flat Chat columns for the Sydney Morning Herald’s ‘Domain’ section. Some of the issues are specific to New South Wales, some are universal. There will almost certainly be differences in strata law between NSW and other states and countries. If you have a serious problem, contact the agencies (in Australia) listed in our contacts sections. Or contact a properly qualified and experienced strata lawyer. These columns should not be regarded as a substitute for professional legal advice.
Time for more discrimination
When I first started writing about strata I came across a story about a residential village plan in the USA which was open to anyone … except lawyers. The developer reckoned that most people just get on with their lives and sort out their problems when they have them. But lawyers’ knee-jerk response to any issues was to litigate, he said, or at least threaten to do so.
Now this is a huge over-generalization (pace, all my lawyer friends) but we know there are some out there who, as I’ve said in the past, should wear tee-shirts with “LAWYER” on the front, to save them starting every discussion with a reminder of what they do for a living.Predicatably, perhaps inevitably, the US developer was sued for discriminations by a lawyer who didn’t even want to buy into the village. Apparently, the developer’s defence was: “See what I mean?”
I was reminded of this last week when I was asked to comment on radio about the A Current Affair exposé of an apartment building in Brisbane that doesn’t allow families with kids – or even pregnant women – to buy into it.
According to their story, the Heritage listed company title Glenfalloch building in Brisbane’s New Farm area is populated entirely by young urban professionals and retirees.
There was much shock and horror on the ACA track, with lawyers saying this was discriminatory and illegal – which seems to be the case under federal Age Discrimination laws. In fact, it’s very much a “small war, not many dead” and I don’t see anybody going to jail over it nor, indeed, an influx of mewling and puking infants, to misquote the Bard.
But it got me thinking. Strata law in NSW clearly says you can’t have by-laws that ban children. Federal law says you can’t discriminate on the basis of age, sex, religion or ethnicity. But what about some positive discrimination? What if you set up a building for young professionals that suited their lifestyles (which wouldn’t involve being woken on a two-hourly basis by next-door’s latest contribution to overpopulation)?
Isn’t our democracy strong enough for us to be able to make choices about the way we live and who we want to live next to? Would a gay-only building be such a bad thing? How about one that was predominantly Korean or Vietnamese … or Irish … or single women? If this only applied to new buildings and everything was open and above board right from the start, could anyone really claim they were being discriminated against? (I know they could
, and some would, but what would be the point?)Everyone would know what was involved from the get-go. You put up your development proposal and you say, for instance, this building will be for pet owners. People without pets will not be allowed to buy or rent in the building. And then you include facilities like pet playgrounds and cat litter recycling and pets are allowed to wander on common property. And, the important thing is, you don’t get a bunch of opportunist empty-nesters or ‘me-first’ trust fund brats moving in and changing the rules to suit their
Just to give an example. An Anglo-Lebanese woman I know moved into an apartment block in one of the newer areas of Sydney, simply because the unit was the best she could afford. She soon discovered that most of her neighbours were from the same South-East Asian ethnic group.
They would come home from work, dump their stuff in their home, make a cup of tea and then come back out into their lift lobbies and corridors to drink it and enjoy a chat with their neighbours. This was their culture at work and they loved the sense of community they had. The problem was they were having it in the corridors, rather than inside their homes. Our friend, however was not so keen, and ended up moving out because of the constant chatter and laughter outside her door.
Now, she wasn’t the kind of person to start making everyone else conform to her lifestyle (which she theoretically could have done, by getting orders at the CTTT). But wouldn’t it have been a lot easier on her if there had been some way of her knowing not to buy there in the first place.
I love the multicultural aspects of Australia and I enjoy the enthnic diversity of our cities. And I also think that everyone should have to opportunity to live how they please without upsetting other people or having to conform to the arbitrary standards of behavior set by their ‘squeaky wheel’ neighbours.
More discrimination, not less, I say! And maybe somebody will build a block for grumpy old people … oh, they already do – and it’s perfectly legal.
You’ll find a link to the Current Affair story HERE. And you can read my column about the Brisbane building HERE. May 21, 2013
Short-term rulings expose cracks in strata
Recent decisions and debates about short-term letting have exposed two cracks in the façade of strata living in Australia. The first is the changing attitude to living in apartments and townhouses which has been evolving as more people move into strata developments as a first choice rather than a last resort.
The second is the difference between the attitudes to strata living in Queensland and the southern states. Just a few weeks before the Building Appeals Board in Victoria ruled that short-term lets in residential buildings were in breach of building codes, and therefore illegal, the Australian Building Codes Board (ABCB) in Queensland rejected a joint appeal by the Home Unit Owners Association and the Australian Hoteliers Association to ban short-stay letting in residential buildings because of the effect it would have on Queensland’s property and tourism industry.
You can read more about this decision, trumpeted by the Queensland branch of Strata Community Australia (the strata managers’ governing body) HERE
. The SCA describe the appeal as an “act of ignorance”, pinning their colours firmly to the mast of commercial interests rather than community building. This should come as no surprise to anyone with even the most slender knowledge of Queensland strata laws and regulations.
The most obvious example of how strata developers and managers in the Sunshine State take precedence over strata owners and residents is a practice that’s enshrined in law there but is illegal in NSW and Victoria. Like the other states, Queensland forbids developers from tying the future owners of their buildings to contracts that they haven’t had the opportunity to scrutinise or approve. However, specifically excluded from this are management contracts which are not only financially beneficial to the developers, they are often over-priced and very hard to change or terminate, even under the most extreme circumstance.
Recently a building in Queensland failed in a legal bid to have a management contract terminated even though the contractor had gone into liquidation and no longer provided the service. A court decided the contract was merely an asset for sale by the liquidator to the highest bidder – hard cheese for the owners who would have to live with it.
Pre-sales of contracts are just legitimized corruption. The developer takes a hefty fee, signs up their buildings for 10 or 20 years and then hands the iron-clad contract to the apartment owners who have to not only pay the cost of the management services provided under terms they had no part in negotiating, but have to cover the manager’s cost of buying the contract in the first place.
It doesn’t matter how good the management service is, there is a kickback to the developer and a headlock on the Body Corporate that are both welded in place by seriously outdated legislation.
What does this have to do with short-term rentals? A lot of residential managers in Queensland make extra money from running their rental services (often with exclusivity clauses built into their contracts). Long-term residents frequently complain that they are treated as second-class citizens in their own homes for the simple reason that the manager doesn’t make an extra cent out of renting their units. Sad but true.
Strata managers and developers in Queensland often tell us that their strata laws are the model everyone in Australia should follow. You can see why they would be so enamoured with them, given that the laws are skewed so heavily in their favour with barely a thought for the long-term strata owner or tenant.
By the way, if you want evidence of how fundamentally flawed strata law in Queensland is, their Body Corporate and Community Management Act 1997 runs to a flabby 449 pages whereas NSW’s far from perfect Strata Schemes Management Act is a muscular 177 pages and Victoria’s work-in-progress Owners Corporations Act 2006 is a positively whippet thin 156 pages.
Size isn’t everything, it’s true, but just searching for the word ‘contract’ in the Queensland legislation calls up a bewildering set of sub-clauses and qualifications which remind you that strata law is a like a joke – it doesn’t work if you have to explain it.
Getting back to short-term lets, there was another blow to these strata parasites this week, from an unlikely source – houses used as holiday homes in the NSW Central Coast. According to THIS STORY
, the NSW Land and Environment Court has ruled that the definition of a dwelling house necessarily involved ”a degree of permanent occupancy” which was not applicable to homes let out for less than three months at a time.
This is great news for local councils and resident owners that have been fighting ‘rezoning by stealth’ of some short-term letting agencies and landlords who buy into residential strata buildings then rent out their apartments like hotel rooms, to the great distress of those who live there permanently. Even when the short-term landlord have taken over control of the Owners Corporation, and given themselves permission to run short-term lets, individual owners will be able to go to council and have them declared illegal.
And while there will be squeals that this is undermining the “traditional Aussie family holiday home” all it’s really doing is curbing the greedy exploitation of apartments for bucks nights and footie outings. As Gosford City Council is planning to do already, councils in traditional holiday areas will look at their zoning so the holiday apartments can continue to function as before.
But in the inner cities, where short term lets contribute nothing to the local economy and in fact undermine the hotel trade, there’s another big stick with which to beat the bad guys. And that’s the other gap that’s appearing in attitudes to strata living – those of us who see this as the future of inner-city living will applaud these moves.
Those living in the past who still see apartment living as a poor relation, a Plan B or a temporary option for those headed for a McMansion in the Hills will wonder what all the fuss is about. May 5, 2013
Peace breaks out but defects war continues
Looking at the ‘peace treaty’ recently announced between developers and apartment owners in NSW, you have to wonder why … and especially, why now?
Some developers have treated strata residents and investors with scarcely concealed contempt for years. A survey by the UNSW’s Department of the Built Environment released last year revealed that 85 percent of apartment owners reported defects in their buildings and 75 percent of them hadn’t been fixed.
For decades past, successive governments have been firmly in the deep pockets of some of the major players, with, seemingly, no rort or hustle too blatant for Macquarie St to stomach.