@mini said:
@JimmyT said:
No, it isn’t arguable. Section 49, to which you refer, doesn’t even prevent owners corps from passing by-laws preventing the lease of apartments as short-term lets“A high-rise apartment building leasehold scheme located in Sydney’s Darling Harbour was managed by a large hotel group for some time, and a number of lot owners had made their apartments available for short-term holiday leases through the hotel group. This situation changed when the hotel group vacated the building and an extraordinary general meeting of the owners voted to adopt a special by-law to prevent short-term leases and serviced apartments … The Adjudicator considered that the new special by-law led to restrictions that were not compatible with section 49, and was therefore outside the by-law making power of the owners corporation pursuant to section 159 of the Act…”
Not arguable? Or, would this be considered “scratching your amateur attorney itch”?
Absolutely and here’s why.
This is a very specific case where a building that originally had a DA and a Strata Management Statement allowing short-term lets was now being reclassified as long-term residential only. THAT is in breach of Section 49 because, at least in part, it is retrospective and discriminates against people who have bought into the building in the good faith and reasonable expectation that they would be able to let their apartments as short-term rentals.
That is completely different from a unit block that is already zoned permanent residential has a Strata Management Statement that says nothing about allowing short-term lets and where the owners corporation is allowed to use its statutory instruments to manage its community.
This is the danger of trawling the internet looking for cases that kind of, just about, almost, nearly support your argument. I say again, there are websites out there that will gladly accommodate reams of dubious advice at any length and of any quality. If you need an outlet for your itch scratching, please go there because this is not the place for it.
However, if you can find one case of a residential only building that has had an attempt to create a by-law forbidding short-term lets overturned by a Section 49 submission, please let us know.
And, by the way, I got my information on Section 49 from Cathy Sherry who is a senior lecturer in strata law at UNSW and, according to the UNSW website, is “a leading Australian expert on strata and community title” and “provides advice to government and the private sector on the complexities of collectively-owned property.”