• This topic has 7 replies, 4 voices, and was last updated 1 month ago by .
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  • #47554
    AvatarBronsonT
    Flatchatter

    Hi Flat Chatters.

    I would like some advice on the options available to stop owners/agents letting out their lots for STL.

    Since the advent of online booking systems like AirBnB etc the building has gradually had more and more owners take up the opportunity of a quick buck and the apartment block now has the appearance of a quasi hotel with multiple transients and their suitcases hanging around the foyer just about every day and at all hours.

    There is no doubt in my mind that several apartments are being let for STL purposes.

    But what I don’t know is whether or not the particular STL owners are aware of it or not, ie some agent(s) that specialise in STL may have conned some owners with a rental guarantee and then advertised them online for STL without the owners knowledge.

    The building is in NSW and close to amenities and tourist attractions so I can understand why it is attractive to the STL market.

    The building has a specific bylaw that that mentions that owners/occupiers must comply with the development consent of the building and, a recent property search determined that there is an 88B attached to the Deposit Plan that specifically mentions that STL is prohibited.

    So my own thoughts are that STL is not allowed and the culprits are breaching at least one of the bylaws and also breaching the development consent.

    Question is what are the options available (via the EC and Strata manager) to have the STL stopped in the building:

    Do we also need a specific bylaw that prohibits STL or is the one we have re complying with development consent sufficient?

    Can the EC/SM simply issue them with a breach notice and 7 days to comply then deactivate the culprits security swipes if they don’t comply, then wait for the fallout to see if they have the gall to take the OC on at NCAT?
    Should the breach notice be sent to the owners or the agents?

    Should it be reported to the local council and, what action are they likely to take?

    Is it best just to follow the legal process of breach/mediation/NCAT etc? My concern with this option is the length of time it may take.

    What evidence would be required to prove that the owners/agents are in breach of both a bylaw and council development consent?

    Any advise would be greatly appreciated so that I can get some action started on this.

    Thanks.

     

    • This topic was modified 1 month, 3 weeks ago by .
    #47603
    Jimmy-TJimmy-T
    Keymaster

    Your by-law demanding compliance with the DA for the building should be enough.  Your challenge is to prove that the visitors are holiday rentals.

    Strategically placed cameras on common property should gather the evidence you need and but you can start issuing Notices To Comply as soon as you are sure short-term letting is occurring.

    Our friends BnbGuard will help with the evidence gathering.

    Regarding the cancelling of swipe cards, what I would do is send out a notice to all owners that they are required by law to register the names of their tenants (under Section 258 of the strata Act), subject to a maximum fine of $550. Fourteen days after you issue the notice, you announce an “audit” of all swipe cards, citing concerns about security breaches.

    This audit will require the registered tenant to present their swipe card and 100 points worth of identification, to the building manager, strata manager or secretary on a certain date. After that, you could just cancel the cards and say unknown people had been seen entering the building and the cards were cancelled as part of a follow-up to the security audit.

    Be ready for very angry holidaymakers who can’t get into the building and homicidal holiday rental “hosts” who will soon be losing money hand over fist.  But if you hit them hard with every option available to you, they’ll soon get the message and go elsewhere.

    But call Bnbguard – they are the experts in this.

     

    #47750
    AvatarBronsonT
    Flatchatter
    Chat-starter

    Thanks for the advise JimmyT.

    I’ll pass your suggestion on to the EC and/or SM to see if I can get any action started.

    Assuming they are prepared to do the audit, then during the 2 week waiting period they should be able to also start gathering some evidence.

    Could this also be used to pass on to the ATO, the local council and also for any NCAT process that may result in the swipes being cancelled?

    I’ll try to keep the forum updated with any progress.

    [This post carried excessive amounts of Apple-generated coding which had to be edited out.  In future, please save in a generic text format before copying and pasting. Thanks – JT]

    • This reply was modified 1 month, 2 weeks ago by .
    #47759
    Jimmy-TJimmy-T
    Keymaster

    The ATO will happily accept information about anyone raising income and potentially not declaring it for tax purposes.

    The local council will do nothing becasue they don’t have the financial wherewithall to pursue planning breaches of this nature (which is precisely how Airbnb gets into residential markets all around the world).

    And NCAT love videos, emails, diaries, written records and recordings as evidence of breaches – otherwise it’s just “he said, she said”.

    #48135
    Avatarmrmr
    Flatchatter

    Hi BronsonT,

    we had our AGM for strata building in Sydney last night. We along with all other buildings are trying to limit / contain STHL in our building – mainly through By-Laws. The advice from the strata group manager is that recent NCAT rulings have found in favour of AirBNB despite it being newly regulated in state legislation to give power to strata committees. We are adopting a by-law which limits the time frame for this letting, and with added controls with the aim of keeping the tenants in line with the residents (and other By-Laws) of the building. This goes against logic however legal precedent is just that, and if the NCAT is ruling it is unlawful not to allow STHL in a building, then this is what we have to work with. The By-laws banning STHL in a building may be ruled invalid or at worst illegal so please discuss solutions with your strata manager, and do your research on changes in legislation.

    #48137
    Jimmy-TJimmy-T
    Keymaster

    I don’t know what kind of advice your strata manager is giving you but the new laws on short-term letting haven’t come in yet so I can’t see how they can base their advice on results issued by NCAT under the old laws.

    The old  (curent) laws depend on the part of strata law that says you can’t interfere with the buying sell of leasing of a lot.  That is interpreted as meaning you can’ prvent people from doing what they want with their property, in terms of leasing it.

    Most strata lawyers whom I know say that, under current legislation, if you have a DA that says no holiday letting and you pass a by-law saying you support your council DA, then that is perfectly legal.

    The thinking is that, as the owner never had the right to have short-term letting to begin with, you are not interfering with nayone’s rights by imposing a by-law that says you are going to ensure owners abide by the law.

    It’s when you start allowing holiday letting with conditions that you are in breach of strata law, because you are then giving the owner the right to breach your planning regs, and then trying to control it.

    I think your strata manager has given you really bad advice and I would seek a second opinion from an experienced strata lawyer before you register the new by-law (which I think may be in breach of strata law anyway, and therefore invalid).

     

    • This reply was modified 1 month ago by .
    #48192
    AvatarCountryBumpkin
    Flatchatter

    I’m interested in the legality of cancelling (or de-activating) swipe card/airkey/keycard access to common areas, which is one of the suggested actions above and in Jimmy T’s article “Can we cancel holiday let keys?”

    Our Strata Committee has used this tactic to restrict STL, as well as penalise those who have ignored strata parking rules – and although I don’t have an issue in principle with this action being used as a last resort, can it be done without first taking bylaw breaches to NCAT, or indeed can it be done at all?

    I would have thought that, legally, as common areas are owned (albeit in common) by the offending lot owner, to deny them access to their own property through de-activating a swipe card may be on shaky legal ground, and could even lead to claims for damages against Strata Committee members (of which I’m one). Sure, if there’s a bylaw that specifically allows for de-activation of swipe cards in defined circumstances then there may be a case, but does this trump common law and/or legislated property rights (assuming there is such a thing)?

    I’d be very pleased to be set straight on this – despite much searching on many forums, website etc, there seems no clear answer.

    #48199
    Jimmy-TJimmy-T
    Keymaster

    You’re right that the committee can’t just cancel swipe cards, at least not legally, but they can restrict swipe cards to registered residents.

    The law demands that the owners corporation be informed of any changes to the lease of a lot, with information provided as to the identity of the new resident. This is routinely ignored by holiday letting hosts who want their guests to have the same rights of access as residential tenants, but don’t want to tell us who they are.

    Short-term letting agencies expect us to stick to the letter of the law when it suits them and ignore the law, such as  the terms of development approvals (namely, no holiday lets) when it doesn’t.

    So I would make it a security issue. Announce that there will be a periodic audit of the swipe cards for security reasons that may result in swipe cards being cancelled when they are held by someone other than the registered leaseholder or their registered sub-tenant.

    Some buildings even have a system that matches the face registered on the computer with the face of the person trying to gain access.  Others use fingerprint technology, especially to restrict access to facilities.

    As for the threat of legal action – personally, I would push it to the limit (mediation) then back down and find another way of frustrating these parasites.

     

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