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TLDR: I have granted my brother keys to my apartment that I own, however strata considers him a guest and does not let him use common property without my presence.
I own an apartment in NSW.
This is not an investment property. I do not commercially rent it and I do not Air BNB it. I do not claim any tax deductions in relation to the property. This is officially my PPOR although I also stay at my partner’s PPOR when my work requirements dictate.
I have given my brother a set of security fob and keys to my apartment.
There are no other fobs and he does not lend the fob to anyone else (and nor do I).
My brother has my verbal approval to do whatever he likes while he is in my apartment, as long as it is not illegal.
We are both shift workers. If my brother has late shifts and has another early one the next day then he’ll stay. Similar with me, otherwise I’ll go back to my partners house.
My brother also uses the common facilities: gym, pool, BBQ, and tennis courts.
When he uses these facilities, he follows the requirements for owners and occupiers as per the strata and building management schemes. Ie for the tennis court he puts his name down to reserve the court for an hour to play with his mate, or 3 other mates to play doubles.
A member of the Strata committee has taken exception to this and says that my brother is a “guest”, and that as a “guest”, he “cannot use the common facilities without me, being the owner, being there at all times” (quoted from the Strata rules).
As a member of the Strata committee, that person has presumably bullied their fellow members and the building manager to enforce this, leading to police being called to “evict” my brother for trespass of the tennis court earlier this week. I am trying to obtain a police report on why the police were called in the first place. I am sure the police have better things to do.
I have been advised that my brother’s fob access has now been restricted and does not allow for the use of common facilities. I do not know on what grounds under the strata plan this has been done. I am concerned that they will restrict his use of the lift next.So, the question is, is my brother an “occupier” of my apartment? Occupier is defined as “any lessee, sub lessee, licensee, sub licensee, occupier or mortgagee in possession of a Lot” in the Strata plan. Yes the definition also includes the word occupier…
The Strata Schemes Management Act, 2015 (NSW) says: “occupier” of a lot means a person in lawful occupation of the lot: https://classic.austlii.edu.au/au/legis/nsw/consol_act/ssda2015279/s4.html
I have repeatedly told the Strata committee that I believe my brother meets the definition of “occupier”. Do I have to formalise my verbal board agreement with him into a ‘ written lease’ to satisfy the Strata’s “occupier” definition? Even then they say they do not agree. They say he is not a resident and does not sleep there regularly. I cannot find any mention of the word resident and sleep in the by laws. They have even said that licence details need to be changed which again I do not think is legally correct.
At this stage they are just bullying us. I can see that even if we fold and say he is a “guest”, they will make up another rule, ie if I go read a book next to the pool while he swims, they’ll still find a way to kick him out. Next time, they may use the same rules to bully more fragile owners’ relatives such as parents and grandparents of owners.
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When he uses these facilities, he follows the requirements for owners and occupiers as per the strata and building management schemes. Ie for the tennis court he puts his name down to reserve the court for an hour to play with his mate, or 3 other mates to play doubles.
Well, there may lie your problem. The committee doesn’t like the idea of four “non-residents” playing on their tennis court. (BTW, that must surely meet the definition of “First World Problem”). Simple solution, register your brother as a tenant on the strata roll. Then he must be allowed all the rights and privileges of any other tenant and anyone who tries to prevent that is guilty of harassment.
Meanwhile you could apply for mediation with a view to taking action at the tribunal under Section 232 of the Act.
232 Orders to settle disputes or rectify complaints(1) Orders relating to complaints and disputes
The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following—(a) the operation, administration or management of a strata scheme under this Act
Just applying for mediation may get them to pull their heads in. And don’t get bogged down in matters of principle as in, you don’t see why you should have to do anything. Do what needs to be done to shut this down. This should be an easy fix and if the committee has a problem with your brother’s behaviour, then they have avenues they can pursue too.
FYI I know of a developer who claims they are a resident because they let apartments on airbnb and short-term lets are considered residential under our cockamamie laws in NSW.
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Thanks Jimmy, I have already hinted to the building manager this will happen however he also says that they will need a drivers licence update as proof he “sleeps here” and is a “resident”. Is this legal?
I don’t think so. This is what the Fair Trading website says:
Tenancy notices
A landlord or their real estate agent must notify the owners corporation in writing of a lease. This allows the strata roll to be kept up to date.
The notice must be provided within 14 days of the start of the lease.
The notice must include:
- name of the tenant
- address for the tenant to receive notices
- start date of the lease, and
- the name of the landlord’s agent.
Where a landlord or their agent fails to provide the tenancy notice, the tenant may provide the notice to the owners corporation.
Go to the Fair Trading website and download the official tenancy form. Only you need to be satisfied that your brother is who he says he is. The strata manager or building manager has no right to demand ID unless it’s for the purposes of picking up registered mail or something similar.
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People on committees can be insufferable, can’t they? I’d write up and register with them minimum required details occupier notice. Beyond that tell them to go jump – and if they demand ID tell them you first.
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For all the Committee knows, your brother could be a FIFO worker or airline employee who comes and goes and shares your flat when he’s in town. You’ve probably told them differently, but the FIFO scenario is not materially different to your actual situation. You’re entitled to have a tenant and your tenant is entitled to access the facilities. As Jimmy has suggested, formalise the tenancy and then start proceedings towards mediation on the grounds that they are denying access to your legitimate tenant. If you have a SM, you might ask that person to intervene also. If the SM is any good, he or she will know the law around tenancy rights in strata.
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If they have asked for identifying info and you’ve given it, and mediation is underway, there is not much more to be done on your side. Best advice if once been given was to tell them to ‘#@&$ off and shut the door’. I did that 5 years ago and tho the committee is apparently still wailing, I’ve moved on and just ignore them on the issue completely. Life is much better without their added stress and suggest you let them do all the work and ignore them too.