Frustration and fury – what we learned at the Strata Matters owners day

Strata Matters – The show of hands of strata residents who don’t want whole-home Airbnb-style holiday lets in their unit blocks

What a day! Just under 100 – and by that I mean exactly 99 – Flatchatters and OCN members turned up at the Strata Matters event on Saturday (March 10) to hear the Minister for Innovation and Better Regulation (inc. Fair Trading) Matt Kean talk about what his government has done and is doing for apartment residents.

There was standing room only as a stream of experts from Fair Trading, NCAT, Our Strata Our Choice (the anti-short term holiday letting group), UNSW, MBM building engineers and surveyors, Longitude Insurance, and BAC insurance brokers answered questions and offered their opinions on some of the problems that face us all.

The topics ranged from what to do about bad neighbours and terrible strata committees, through the impending legislation on short-term holiday letting (STHL) – and how to control it if the politicians let us down, which they are bound to do to some extent – to flammable cladding and building defects.

The takeaways from the experts’ point of view were:

  • The government hasn’t yet settled on a model for STHL, the minister is still listening to “all parties” and is mindful of the revenue that (allegedly) additional tourism brings.
    Prominent among these “parties”, of course, is a global online letting agency that has, directly and indirectly, begun threatening our MPs that they could lose votes if they don’t bow down to its demands, pays little or no tax in this country and happily helps investors to turn your homes into hotels.
    Meanwhile this effectively tax-free internet giant is NOT telling even its few genuine “sharing” hosts that they are losing their capital gains exemptions on their homes because the Australian Tax Office says they are running them as a business.
  • It is worth taking your neighbours or strata committee to Fair Trading for mediation because, just knowing you are serious may well have the desired effect, the mediation may actually sort things out, and at least you have made the obligatory first step towards taking your case to NCAT.
  • NCAT members will, when push comes to shove, follow the letter of the law. If a by-law has been allegedly breached, the NCAT members will resort to the nature of the by-law and the breach rather than the reasons for it.
  • NCAT will occasionally advise owners that they should employ an experienced strata lawyer in a complicated case. They will also occasionally award costs in a case that has been brought with little chance of success, just as a way of getting at the committee or an individual.
  • Don’t listen to Fair Trading when they say that by-laws that prevent short-term letting are invalid (something the Minister repeated privately after the seminar). The highest courts in WA and the British Commonwealth have both ruled that the equivalent of our section 139(2) – forbidding by-laws that interfere with leasing of a lot – does not apply to STHLs if the by-law is worded correctly.  A sample by-law will be put on the OCN website.
  • The vast majority of people who like Airbnb and may have even used Airbnb don’t mind the letting of rooms in apartments when the owner or tenant is there (what Airbnb says it’s about) but really, really don’t want is the commercial letting of whole apartments (by far the largest part of Airbnb’s business).
  • There were suggestions of funding a class action to take a challenge to a valid ‘residential-only’ by-law all the way to the Appeals Court if necessary, to establish a legally binding precedent on STHL by-laws that will stand, possibly regardless of any pro-Airbnb legislation that might come in.
  • As no legislation can possibly take effect this year or maybe even next it’s worth doing what we can to protect our buildings in the interim.
  • There is no escaping the simple need to remove and replace inflammable cladding on buildings that have it installed – and it’s going to cost on average $40,000 per apartment to do so.
  • Insurers panicked after the Grenfell fire in London but now that everyone has calmed down there is still an obligation on owners corporations to make their buildings safe.
  • When it comes to defects and you are confronted by dodgy developers and builders, phoenixing into new entities all over the place, leaving family members nominally in charge of the new entities while old debts are left unpaid by defunct companies – all you can do is to keep plugging away … or give up and get on with your lives

OK, that was the experts but there was a lot of emotion from ordinary apartment residents in the room (and outside – the Minister stayed for another hour answering questions from often furious owners) about how the law and regulations are one thing, but getting them enforced is another.

Due process often means delays and delays mean frustration and anger. The irony was not lost on the room that our Fair Trading department – the government body that’s supposed to protect consumers – is bending over backwards to defend and encourage people who are running illegal holiday lets while doing absolutely nothing to protect the victims of fraudulent developers.

And that, after a day with a lot of laughs and few tears, says it all.  Maybe we need to start threatening MPs’ votes too.

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