This topic contains 2 replies, has 2 voices, and was last updated by Jimmy-T 2 months, 2 weeks ago.

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  • #38592
    Jimmy-T
    Jimmy-T
    Keymaster

    Late last night I settled down to do some writing anbd found a long post asking what the chances were of getting around an anti-holiday letting by-law.

    Having spent about half an hour editing out all the Apple iOS coding  from the copy and paste (what a pain!), and then removing information that might lead to anyone identifying the sender, I then proceeded to answer.  Basically, this took an hour out of my time.

    Then I discovered that the original post had disappeared.  What happened? Had the poster changed their mind and deleted the post?  Or was it just another glitch in this software?

    Either way, this is an issue that needs to be addressed, so here it is below.

    #38593

    A Lot owner enters into a standard 12 month lease agreement with the Tennant. No special conditions. The tenant lists one of the rooms in the 3 bed apartment on Airbnb whilst he lives there permanently

    The Lot owner doesn’t mind the Airbnb happening. It causes no disturbance to other residents and helps the tenants pay the rent.

    The strata manager emails a letter to the  tenants   (not the owner)  telling them to stop hosting on Airbnb based on their by-law 17.

    17. The Body Corporate will not approve short term holiday rental of units. For example “Air bnb” or similar type short term holiday exchange rental. Short term is less than six months.

    The tenants believe they are within their rights to host their spare room on airbnb based on s.139(2) SSMA 2015 and information from the local council (see below).

    The tenants receive a 2nd email from the strata manager with general advice attached on what is happening with future legislation from their Solicitors. The email threatens to take action against the lot owner if the tenants do not cease the Airbnb.

    As the lot-owner has a 12 month lease with the tenant and the tenant is a permanent resident in the apartment it is believed that the request to stop listing their spare room on Airbnb is unjust and goes against section s.139(2) SSMA 2015 of Act.

    The tenants believe that if this goes to NCAT and the adjudication rules in favour of the strata scheme, the outcome would be a $1500 fine to the owner (which the tenant would pay) and instruction to take down the listing and that is all.

    1. Is this correct or are there more serious consequences?
    2. If the issue does progress to NCAT, do you think there is a good chance that NCAT will rule in favour of the Strata Scheme?
    3. As the tenant lives in the apartment and does not offer breakfast, we believe we may fall under councils section Subdivision 22 Home businesses which would mean we aren’t breaking any council regulations either. Have you heard of this argument being used?

    Other information
    Building is in the  R3 zone ( Bed and breakfasts allowed with CDC)
    Tenants have been advised in writing by a compliance officer at local council that

    ‘If a premises is being used unlawfully for tourist and visitor accommodation, Council has discretion in deciding whether to take enforcement action against any person who it considers to be in breach of the law, based on the available evidence and other circumstances such as the impending changes to NSW planning laws that will allow short term holiday lettings….

    Currently Council is not taking action against an owner who is using their premises for short term accommodation unless the use is causing detrimental and direct amenity impacts on other residents.”

    Tenants have been verbally advised by council that as they do not provide breakfast, they do not comply with the requirements of a Bed and breakfast which is allowed with consent and advised not to apply.

    We [may] fall under the Subdivision 22 Home businesses 2.43 specified development which is exempt of a CDC.

    #38595
    Jimmy-T
    Jimmy-T
    Keymaster
    Chat-starter

    I’m going to go ahead and assume you are the tenant in question or representing them in some way.

    Your statement that this is not causing any disturbance to other residents is based on what? Have you taken a survey or are you just making an assumption.  “Causing a disturbance” could include setting a precedent that other residents are anxious to avoid.

    To answer your numbered questions in order:

    1. Is this (a fine of $1500) likely or are there more serious consequences? The fine is unlikely to be any higher that $550 but then it could be imposed multiple times, with increased penalties for ignoring NCAT orders.
    2. If the issue does progress to NCAT, do you think there is a good chance that NCAT will rule in favour of the Strata Scheme?
      To be honest, NCAT is a crapshoot and it could go either way, but if the owner’s corporation uses the precedent of decisions by the highest court in WA and the Privy Council (Law Lords) in London, rather than an NCAT decision in a very specific case centred around a very badly worded by-law, the tenant will lose.
    3. Have you heard of this [non Bed & Breakfast] argument being used?
      Nope, but in any case all over NSW councils are ignoring their own Development Approvals, many of which clearly state that apartments must not be used for holiday letting, which they often define as no less than three months.

    Personally, I don’t have a huge problem with genuine “sharing” – i.e. letting a room while the resident is there. But that’s just me.

    However, let’s assume this tenant and his landlord-in-law tough it out, go to NCAT and some old anti-strata duffer decides that your, sorry, the tenant’s dubious “rights” take precedence over  the wishes of the majority of owners.

    Congratulations.  You win and you can rent out that spare room to Swedish Backpackers to your heart’s content.

    However, pretty soon you’ll find your pass key intermittently stops working, tradies trucks seem to be always parked in your space, some vandal has superglued a matchstick in your doorlock,  your internet keeps going off, the woman upstairs is taking Flamenco lessons at 6 in the morning (but, mysteriously, no one else in the building can hear her), all your mail is return to the post office  marked “gone to Ibiza, return to sender”, and, when the owner wants to get the smallest bit of maintenance done to the flat, it will take months to get it approved, if it ever is.

    What I’m saying is, the landlord knew or shoud have known what the by-laws said and has decided to say “stuff you” to the majority of owners in the building. But don’t be surprised if the majority of owners say “stuff you” right back and make your lives a misery by all sorts of creative and untraceable means.

    So by all means, get all bush lawyer about it, and spend money on real lawyers who will happily take this to NCAT and have at least an even chance of winning.

    However, vastly superior courts to NCAT have found that, where local planning laws don’t allow holiday letting,  Section 139 (2) doesn’t apply since the owner never had the right to offer holiday lets in the first place, therefore nothing is actually being prohibited or restricted because that right did not exist.

    Based on the letter from your council, which refers to unlawful letting, Section 139 (2) may well fall over  becasue the right to let doesn’t exist, regardless of the local council’s failure to act on their own regulations.

    If I were you, I’d talk to an experienced strata lawyer before you do anything that makes you and your landlord a pariah in the building.

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