Flat Chat Forum By-laws and outlaws Current Page

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  • #55745
    Court
    Flatchatter

    Our Strata Manager and Committee are attempting to pass a by-law at the AGM relating to short term rentals that requires owners to provide to the building manager the written consent of their guest to allow their vehicle to be  immobilised if it is found illegally parked.  Are they serious?  What guest in their right mind would agree to this and how can owners possibly comply with this by-law?  They know that it is illegal for the building manager to wheel lock a vehicle so this is their answer to the problem?  I’m surprised the Strata Manager has gone along with it – shows how professional he is.

    • This topic was modified 2 months, 2 weeks ago by .
Viewing 11 replies - 1 through 11 (of 11 total)
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  • #55785
    Jimmy-T
    Keymaster

    They know that it is illegal for the building manager to wheel lock a vehicle so this is their answer to the problem?

    Actually, it’s illegal to wheel clamp a vehicle without the owner’s permission. This would have the owner’s permission

    What guest in their right mind would agree to this and how can owners possibly comply with this by-law?

    Okay, but short-term rental parasites (sorry, hosts) can set conditions on their rentals.  And owners corps can set by-laws with reasonable conditions on allowing short-term rentals.  And there are no strata-kops who will come running round to tell you your by-laws are not valid – someone has to take the scheme to the Tribunal to challenge by-laws that they think are unreasonable.

    In the meantime, the short-term rental guests feel very unwelcome, find their keys have been cancelled and there is no access to the pool or gym as advertised in the online listing.  Off the host goes to NCAT and  quite possibly wins.

    But wait, now there’s a new by-law that says your guests have to provide pictures of themselves drunk, so the security guys will recognise them when they rock up at 2am off their faces.

    The point is, this sounds like a smart way of keeping  short-term rentals out of a building without scaring the horses with a full-blooded ban.

    My favourite “go away” tactic (as suggested by other Flatchatters)  is to not allow access to the gym or pool to anyone who hasn’t done a facilities safety induction course, which occurs on Thursdays every second week and costs $80 a pop (free to permanent residents, including long-term tenants).

    Disrupt the disruptors!

     

    • This reply was modified 2 months, 2 weeks ago by .
    #55795
    Court
    Flatchatter
    Chat-starter

    Ummm – very cynical..  OK so I should have mentioned that our block is actually holiday rentals only so owner occupiers can all get back in their cages and settle down…

    What this by-law is actually about is the owner who has the letting rights (and is also on the Strata Committee and has the Strata Manager in his pocket) attempting to prevent owners who choose to let their properties themselves from leaving his letting pool.  His solution to his reduction in income is to get the Strata Committee to introduce a set of draconian by-laws and conditions that he thinks will stop owners from exercising their rights to self-manage.  What he should focus on is to stop ripping owners off and do a better job of running his business!

    Anyway, this particular rule he is proposing to introduce is a joke…. (AND the Strata Manager should know better)

    #55797
    TrulEConcerned
    Flatchatter

    Someone correct me if I am wrong, but as I understand it, owners of lots cannot be restricted in their short term (AB&B) rentals by the OC.

    If that is so, and a lot owner renting out his lot in full (ie he is not on the premises), surely whatever parking rules he lives under are those that should regulate how his guest/s will live under. If he is subject to heavy penalties or clamping for transgressing than surely his “guests” would be too. If he is not, then surely his guests should not be.

    As an aside, I understand from a discussion with a lawyer that owners should not feel comforted necessarily by a strata’s collection of by laws including a by law that seems to meet an owner’s needs.

    This is because there is nothing compelling a Strata Committee (SC) from enforcing any by law.

    And in many cases, given the dominance and sway a SC has over others, the OC if taking part in a general meeting to decide on enforcing a by law, will often ape the SC’s views.

     

     

    #55801
    Jimmy-T
    Keymaster

    Ummm – very cynical.. OK so I should have mentioned that our block is actually holiday rentals only so owner occupiers can all get back in their cages and settle down…

    OK, so you should have.

    You can’t really criticise people for misinterpreting the issue and tell them to “settle down” when you leave out one of the most significant facts (not to mention all the other details you have now provided).

    This is a very specific set of circumstances.  However, the proposed by-law is, as you say, a “joke” … if you are in NSW.

     

    • This reply was modified 2 months, 2 weeks ago by .
    #55803
    Jimmy-T
    Keymaster

    Someone correct me if I am wrong, but as I understand it, owners of lots cannot be restricted in their short term (AB&B) rentals by the OC.

    In NSW, Section 137A of the Act allows owners corps to pass by-laws forbidding apartments from being let as short-term rentals when they are not the principal place of residence of the owner.  Whether or not that allows the owners corporation to impose conditions on the lets that they do allow is another matter that will doubtless be thrashed out at the Tribunal at some future date.

    In this case, bear in mind that we have only now learned that this is a block entirely given over to short-term lets.

    … there is nothing compelling a Strata Committee (SC) from enforcing any by law.

    Not so. The owners corporation has a duty to enforce its by-laws. This was confirmed to me by the former Fair Trading Minister Victor Dominello who quoted his Second Reading of the current Act, in which he said “Members of the strata committee will now have a statutory duty to act for the benefit of all owners and to exercise due care and diligence in their role.” He said that implied a duty of care to enforce their by-laws.

    If the owners corp didn’t have a duty to enforce by-laws, why does section 232(2) (below) even exist?

    Section 232 (2) Failure to exercise a function 

    For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—

    (a)  it decides not to exercise the function, or

    (b)  application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.

     

     

    #55813
    TrulEConcerned
    Flatchatter

    Jimmy thanks for your feedback. With reference to the specific by law on non resident owners, I take your point.

    As to other by laws, earlier I wrote that I understood from a lawyer last year that an OC or SC is not compelled to enforce a by law or by laws if it so chooses. I don’t have my colleague’s reasons for that opinion with me, but a search today online reveals the view on by laws by another law firm:

    Understand why your strata committee may refuse to act:

    The strata committee must enforce the by-laws if they “reasonably believe” there has been a breach. The committee or body corporate may have to demonstrate that it is reasonable in the circumstances of the alleged breach to not enforce the by-laws. They should provide clear reasons regarding their decision to the affected owners and examine the effectiveness of the by-laws.

    See https://picagroup.com.au/article/library/breaking-by-laws-strata/

    This was in relation to noise from builders renovating a unit in the strata (outside allowed times for work) which greatly disturbed others.

    #55818
    Jimmy-T
    Keymaster

    As to other by laws, earlier I wrote that I understood from a lawyer last year that an OC or SC is not compelled to enforce a by law or by laws if it so chooses.

    But then you write:

    The strata committee must enforce the by-laws if they “reasonably believe” there has been a breach. The committee or body corporate may have to demonstrate that it is reasonable in the circumstances of the alleged breach to not enforce the by-laws.

    That confirms that the strata scheme is expected to enforce by-laws unless it believes no breach has occured, and confirms what I wrote earlier.

    While there is no penalty for the strata committee failing to enforce by-laws, they are still expected to do so and can be ordered to do so by the Tribunal.

    Of course strata committees aren’t expected to enforce by-laws when they don’t think breaches have occured, and no, there are no StrataKops who will arrest them for failure to enforce by-laws where breaches have occured.

    But there is an expectation that they will pursue breaches of by-laws and clear avenues for owners to take the unwilling strata committees to the tribunal to seek orders when they don’t.

    Furthermore, their failure to enforce by-laws would be prettty damning evidence in a case brough for removal of strata committee members or the appointment of a compulsory strata manager.

     

    • This reply was modified 2 months, 2 weeks ago by .
    #55850
    webman
    Flatchatter

    I’m somewhat confused as to the problem with the proposed bylaw (other than the residuals requirement for the approval to be in writing).

    Firstly I don’t think any parking can be illegal, it may not be permitted, or break some by law etc, but I don’t the police and courts would get involved.

    Now I always thought that all bylaws automatically applied to all owners, Tennant’s and guests, and it was the owners responsibility to ensure Tennant’s and guests adhered to all bylaws. Regardless of a parking bylaw or noise or whatever.

    So why shouldn’t your guests/tennants park appropriately or have their vehicle wheel clamped? It seems like a great solution to ongoing issues of non compliance of parking.

    So can you (OP) explain what your issue is with this proposed bylaw? Is it that your property allocated parking is too far away and you want your guests to park on common property or to block half the driveway or something?

    I’m confused….

    #55855
    Jimmy-T
    Keymaster

    By-laws can’t operate if they contradict or contravene a superior law (and all laws are superior).

    Section 651b of the NSW Local Government Act says this:

    Immobilisation of vehicles

    (1)  A person must not immobilise a vehicle owned by any other person by means of wheel clamps, or by means of any other device prescribed by the regulations, except with the consent of that other person. Maximum penalty—20 penalty units.

    FYI, 20 penalty units is $2200 .
    So this is why the owners corp is trying to push through a by-law that requires lot owners to demand that their tenants sign an agreement that they will allow the OC to clamp their car.  And it seems it is intended to restrict the opportunities for independent owners to let their properties without using the in-house agent.
    So, to backtrack slightly on my previous comment that owners corporations can set by-laws with reasonable conditions, this proposed by-law would seem to be “harsh, unconscionable and/or oppressive”.
    It would also seem to contravene the provision in the act that “no by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing relating to a lot.”

     

    • This reply was modified 2 months, 2 weeks ago by .
    #55858
    webman
    Flatchatter

    By-laws can’t operate if they contradict or contravene a superior law (and all laws are superior).

    Section 651b of the NSW Local Government Act says this:

    Immobilisation of vehicles

    (1) A person must not immobilise a vehicle owned by any other person by means of wheel clamps, or by means of any other device prescribed by the regulations, except with the consent of that other person. Maximum penalty—20 penalty units.

    FYI, 20 penalty units is $2200 .
    I understand the need to obtain permission, but the passing of the bylaw is permission. It would then be the owners responsibility to ensure that the same permission is obtained from their guests, I don’t see why the OC would require individual proof of permission from each guest or tenant etc.

    I’m also really confused how this bylaw prevents any other from using any rental agency of their choice. It’s purely helping to ensure that the parking restrictions can be enforced easily. Why wouldn’t any strata not want this kind of bylaw? And how does it prevent property rental, short term or long etc…

    • This reply was modified 2 months, 2 weeks ago by .
    #55861
    Jimmy-T
    Keymaster
    I understand the need to obtain permission, but the passing of the bylaw is permission. It would then be the owners responsibility to ensure that the same permission is obtained from their guests, I don’t see why the OC would require individual proof of permission from each guest or tenant etc.

    Passing a by-law is not the same as getting permission.  Tenants aren’t part of the process of forming and passing by-laws so how can they be said to have given permission.  There is no by-law in NSW allowing wheel clamping that will stand up to challenge at the Tribunal, for reasons stated previously – it would be superseded by a superior law.
    And as far as the acceptance of the by-law being “permission”, I have heard of cases of by-law breaches being overturned at the Tribunal because the tenant said they hadn’t read the by-law even though the warning notice (Notice To Comply) had the by-law printed on it.

    I’m also really confused how this bylaw prevents any other from using any rental agency of their choice.

    If the in-house rental agent insists that the Airbnb guests have to sign this, but (privately) his guests don’t, how do you think that would affect Airbnb trade?  The rental agent has a lot more power and influence than individual hosts simply because they have access to the committe and building management.

    If the OP is right, this is a deterrent to potential guests to force the owners to let their properties through the in-house agent.

    • This reply was modified 2 months, 2 weeks ago by .
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Flat Chat Forum By-laws and outlaws Current Page