Stephen Goddard of Goddard & Co

Rolling dice always comes at a cost. It is not up to an Owners Corporation to gamble with the resources of the people it represents any more than it is appropriate for Government to abdicate its responsibility in the development of relevant public policy in the public interest.

Section 139(2) is real and present law.  Short term letting is a real and present threat to the continued public confidence in strata living as a lifestyle of choice.

It is true the denial of the right to make by-laws regulating the commercial use of common property by owners participating in a short term letting enterprise is an unintended consequence of s.139(2).  Section 139(2) was placed in the first 1961 strata legislation for no purpose other than to distinguish the new strata title from company title.  But it is the law and it is the role of Government to remediate “unintended consequences”  – not cavalier OC’s.

I must advise your hypothetical Owners Corporation that I have grave doubts about:

1. The ability of the local consent authority to define residential use in the terms described; but in any event,
2. The Strata Schemes Management Act does not empower an owners corporation to make by-laws regulating the leasing of a lot; and as a consequence,
3. Any litigation commenced or defence by the OC in relation to this by-law:

a. Is a mere crusade made essential by the lack of action on the part of Government; and,

b. Should not be attempted by the Scheme because the OC will fail; and

c. It is the role of Government to amend s.139(2) rather than a group of owners acting like St George trying to slay a dragon.