Airbnb by-laws: Strata lawyers state their cases

Six strata law experts give their take on whether we can create by-laws enforcing our residential-only zoning.

My story in the Sydney Morning Herald at the weekend about Fair Trading saying you couldn’t have a by-law restricting holiday letting – even if the by-law only said it was supporting your residential-only zoning – put the strata approved cat among the never-to-be-fed pigeons.

So I asked a panel of lawyers what they thought. First, below is what Fair Trading said to me last week (which formed the basis for my story):

Owners corporations and/or lot owners should seek independent legal advice about the validity and applicability of current or proposed by-laws.  ​

Section 139 (2) of the Strata Schemes Management Act 2015 states that no by-law can prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing relating to a lot.

Legislative regulations, including council regulations, can only be enforced by and at the discretion of the relevant authority, or delegated authority, tribunal or court, as identified in their governing legislation. 

Meanwhile, someone pointed out that section 18(1) of the model by-laws included in the Strata Regulations says you can’t use the lot for a purpose prohibited by law.

18 Compliance with planning and other requirements 

(1) The owner or occupier of a lot must ensure that the lot is not used for any purpose that is prohibited by law.

But doesn’t that validate the by-law that supports residential-only zoning?

Is Fair Trading right that by-laws are invalid?  Or is there a fatal flaw in the model by-laws? Or both?  I asked a flock of  legal eagles what they thought? Some disagreed, some agreed – but in different ways.

Click on the page numbers below the ‘sharing’ buttons to find out what they said:

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