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I’m not a lawyer so take this with a pinch of salt (or call someone who is) but if work is being done to the building that is to the benefit of all the owners then it is clearly unfair that only a minority of owners should suffer the financial penalty of loss of rent.
I agree with Sir Humphrey (Post #2) and the loss of rent should be borne by everyone equally (or in proportion to their unit entitlements) so you and your fellow top-floor owners should be looking at forcing the OC as a whole to share the burden.
If the powers that be choose not to offer a reasonable settlement, talk to a specialist strata lawyer.
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OK, there are a lot of different issues here that you need to be sure of before you start threatening legal action.
1. If there is a by-law in place that simply reflects the residential-only status of your apartment block by not allowing short-term holiday letting, then it is valid (regardless of what Fair Trading or any other Airbnb-friendly entities may say).
The Privy Council – the highest court in the British Commonwealth – has ruled that by-laws that enforce planning regulations are not in breach of laws that protect the right of owners to deal with their properties as they wish.
The logic is that if planning laws say your block is residential-only then you don’t have that right in the first place. The NSW Government appears to have accepted this principle in its proposal of the new laws.
2. If the by-law goes beyond that and tries to control or limit (rather than ban) holiday letting, then it is probably not valid, because it would be interfering under the terms of section 139(2) of the NSW Strata Act which says “no by-law is capable of operating to prohibit or restrict the devolution of a lot or a
transfer, lease, mortgage or other dealing relating to a lot.”The logic here is that your strata committee can’t put limits on something that is either banned or, indeed, not banned by planning regulations.
3. The Owners Corp is on very shaky ground if it starts cancelling swipe keys for any other reason than a serious potential security breach in the building.
4. The proposed changes to the laws have not been passed and we haven’t seen the fine details yet, so I would pay very little attention to them. It’s business as usual until they become law, which won’t be any day soon.
5. Other potential issues that may come into play include:
- Over-crowding (no more than two adults per bedroom), for which the fines are 10 times higher
- Your possible obligation under Section 258(2) to inform the Owners Corp of the identities of any sub-tenants in your apartment
- The behaviour of your “guests” in your home and on common property
6. Threats of claims for compensation for loss of potential income aren’t going to impress anyone. Right or wrong doesn’t come into it – basic arithmetic does. You are unlikely to get more awarded by a court than would cover your losses and your legal costs.
So where does all that leave you?
If you are a bona fide “sharer” (rather than the BS Airbnb definition which includes wholesale commercial lets of entire homes) I think your OC is treading on dangerous ground by cutting off your swipe keys and I would certainly warn them that you could take them to NCAT with a view to getting orders against them (at the very least).
The proper way for them to deal with breaches is to issue a Notice To Comply against you and then seek fines at NCAT which they may well not get.
Having said that, a smart strata committee or strata manager can find half a dozen ways of making your “sharing” plans unworkable before you can identify one single issue that would guarantee you success in a court action (which is going to cost you money anyway).
So perhaps your best plan is to dial down the threats and sit down with your strata manager and/or your committee and ask them what the problem really is and how you can resolve it.
And on that note, I’d refer you to the article on the front page of this website, about knowing when to stop fighting.
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There’s no time limit in the section of the Act, nor should there be. Levies in many older buildings were either skewed artificially low, to attract buyers to the larger, more expensive apartments or just lazily divided equally because there was no appreciation that a top floor north-facing apartment with a view would eventually be worth more than a ground-floor unit facing a brick wall to the south.
If there is an obvious disparity there should be no problem in getting this through especially if you can get unanimity among owners on the new splits. However, this is unlikely as some owners will lose out. The way to get everyone on board may be to make it clear that you aren’t looking to backdate the new unit entitlements – you just want a fair split going forward.
Also, if you can’t get unanimity, those seeking the redistribution will have to pay for a surveyor to provide an independent assessment of the new UEs, and then you have to work out if it’s worth the money to make the change.
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@butterflyness2006 said:
The cupboard was there before both of us bought our units and Ive been there more than 13 years. There is nothing on the plans and no by-law regarding it.if it’s not on the plans and there are no by-laws about the strata scheme taking it over, then it isn’t common property. Your neighbour should ask the insurer on what basis they have decreed that it is CP.
EDIT NOTE: It has just been pointed out to me that the above is not strictly correct. As the cupboard was there before the lot owner purchased it, and there is no by-law regarding its installation, then the OC is responsible for it. But that just means the could remove the cupboard if they wanted to. They don’t have to repair it. If the owner wants it repaired than they need to take responsibility for it.
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@pmayes said:
I can’t find out how to make a post!!!Log on, choose your sub-forum (like Rental Rants), click on Add Topic, write a clever headline, rant away, click on Submit Post, sit back and wait for replies
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You might also need planning permission as this is a change of use. Could be your trump card.
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Why would a strata scheme need to register for GST? Is this normal? What are you selling?
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@Tess McGill said:
Surely the Strata Manager has some sort of professional (huh!) duty to properly record issues….The strata manager can only act on the information given to them by the committee.
The clear breach here is an alleged deliberate attempt by an owner in a privileged position to conceal the true status of repairs required in the building. I am no expert in conveyancing law but i would say that was probably illegal.
If committee members have colluded in this (with the intention of doing so themselves) then they have lost their individual indemnity by not acting in good faith.
But if you go after the committee members as well as the vendor, they will all claim there were no discussions.
Talk to a solicitor then, if they agree, focus on the vendor and get evidence from the other committee members to back you up.
I doubt very much if the strata scheme as an entity (rather than individual members) has any liability.
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There is no limit to the number of meetings a committee member can miss but there are two ways to deal with persistent non-attendees.
1. Their proxy (for want of a better term) votes can be rejected by the committee at the start of the meeting.
2. When they stand for election at the next AGM, ask them why they are standing when they never turn up and encourage other owners not to vote for them, on that basis alone.
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FYI, the pebbles are a very effective form of temperature control for people living in the top apartments where the roof is effectively their ceiling. Remove the pebbles and sit back and wait for demands that you do something about the heat.
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Contact Fair Trading – they have forms for this. But bear in mind that the most that will ever happen is the strata manager will be “counselled” – but maybe that will be enough.
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One simple answer would be for T to ask for a rent reduction, backdated to their first complaint or for the downstairs landlord to take action. I don’t see why the committee would accept that the flooring is “compliant” when it quite clearly isn’t doing its job.
There are provisions under the Act for the committee to initiate its own mediation, in an effort to try to define the problem and resolve it.
Or, bearing in mind that noise is as much behavioural as it is simply structural, you could start looking at ways of requiring the upstairs people to cut the noise or face breach notices.
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Whose by-laws? Your scheme’s or the “model” by-laws that your scheme may or may not have adopted.
Here are the obligatory or standard bylaws for pre-1996 schemes.
And here are the “model” or recommended by-laws for newer schemes.
Your scheme’s by-laws should be at the end of your purchase contract or, if you are a tenant, must be given to you along with your lease.
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