[Jimmy-T]

If the windows are inaccessible or access would be dangerous, cleaning them is the Owners Corporation’s responsibility (see item 6 below).

Otherwise it’s the resident – whether they are a tenant or an owner.

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[Jimmy-T]

There are always ways of getting around laws and by-laws – just as there are ways of enforcing them creatively.

If you are in a block that has a legal obligation not to allow lets of 30 days and someone plays fast and loose with the rules (as described by Lady P) then you reciprocate in kind. The law is on your side but you don’t have to go to court every time you want to enforce it.

Lift and door security tags can be routinely cancelled when short-stay letting is suspected. Locked-out holidaymakers can be given the mobile number of the owners.

Let the rogue landlord pursue the owners corp through NCAT to enforce their “right” to break the rules.

If you do want to get proactive, Notices to Comply can be issued and fines pursued over breaches of short-stay letting by-law breaches (max $1,100 for the first offence, $2,200 for repeat offences).  

Orders and fines (max $550) are sought at NCAT for failure to register tenants and/or provide by-laws to new tenants (max $550).

Basically, you legally make the rogue landlord and the illegal guests’ lives as uncomfortable as possible until the problem shifts to a building that doesn’t care.

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[Jimmy-T]

@Lady Penelope said:
The term ‘residential’ is a zoning term that merely distinguishes it from the other zones which are mainly either: ‘industrial’, ‘commercial’, or ‘agricultural’. 

The term ‘residential’ generally does not have the narrow and specific meaning that would be required to ban short term rentals from an area that has been zoned as ‘residential’ …

It depends on the local council and its Local Environment Plan. For instance, City of Sydney (which has the largest concentration of apartments in the country) specifies in its DA’s what they mean by permanent residential (see below).

This all comes back to a discussion elsewhere on this website that the best placed bodies to set the parameters for residential letting may be local councils – as they have the bigger local picture in view – and owners corporations as they have their individual community needs to consider.

Ironically, though, it was the City of Sydney submission to the Coure inquiry that set them off down the dangerous path of “complying developments”.

This is an extract from a recent development approval in Sydney.

RESTRICTION ON RESIDENTIAL DEVELOPMENT

The following restriction applies to buildings approved for residential use:

(a) The accommodation portion of the building (levels 1 to 8) must be used as permanent residential accommodation only and not for the purpose of a hotel, motel, serviced apartments, private hotel, boarding house, tourist accommodation or the like, other than in accordance with the Sydney Local Environmental Plan 2012.

(b) A restrictive covenant is to be registered on the title of the development site in the above terms …

(c) If a unit contains tenants, it must be subject to a residential tenancy agreement for a term of at least three months.

(d) No person can advertise or organise the use of residential apartments approved under this consent for short term accommodation or share accommodation.  

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[Jimmy-T]

If you have satisfied all the requirements of the renovation, including proposing a by-law that transfers responsibility for any affected common property to you, then the Owners Corp has no grounds for refusing.

In that case, you would seek relief through Section 126 (2)  of the Act (see below). I would think that explaining this to the other owners, and pointing out that you would also seek to have costs awarded against the OC if you were forced to go down this road, would focus their minds.

Strata Law doesn’t require equality – just fair treatment.  Denying you the option to do something because they can’t is not fair provided your plans don’t impact negatively on other owners.

126 Orders relating to alterations and repairs to common property and other property
(2) Order consenting to owner’s work on owners corporation property
The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, make an order (a work approval order) approving of minor renovations or alterations or repairs already made by an owner to common property or any other property of the owners corporation directly affecting the owner’s lot if the Tribunal considers that the owners corporation unreasonably refused its consent to the minor renovations or alterations or repairs.

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[Jimmy-T]

The story was written after a private conversation I had with the Minister.  He said anyone who pursued an issue using section 232 could refer to the Second Reading of the Bill where the intention of the law is spelled out in detail.  It’s that intention that is critical in pleading a case at NCAT.

And no, I don’t know of any cases where this has been employed but I’d like to hear if anyone has had any success (or failure) going down this route.

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[Jimmy-T]

The Fair Trading Strata Living web booklet also says this about short-term holiday letting:

The owner or occupier of a lot must ensure that it is not used for any purpose that is prohibited by council planning regulations and other laws. They must also ensure that the lot is not occupied by more people than are allowed, and that the use of the lot does not create a nuisance or hazard to others in the strata scheme.

So owners corporations can pass by-laws that say they will comply with council zoning.  And if your building is zoned residential only, then you can use that to block short-term rentals.

The Fair Trading advice will change to reflect changes in the law but I don’t know if we will see those changes embodied in the Strata Schemes Management Act.  I still think THIS SUMMARY covers most of the main options that are or were actively considered.

The government response to the Coure Report is full of qualifications but nowhere does it address one of the critical issues in the original report  – that strata law does not allow by-laws that interfere with “dealing”.

Now, clearly we have shifted from the core of that concept when we allow 75 percent of all owners to force the other 25 percent to sell their units. In other words, the Government can bring in a law that allows Owners Corporations to decided on holiday lets without interfering with the fundamentals of the Strata Act.

But if you look at the Coure response, there are so many acknowledgements of the recommendations couched in terms of “this will be considered” that it’s hard to see how much of it will be accepted.

I am absolutely convinced of two things: the government will allow genuine “home sharing” – the kind that Airbnb claims is their core business; the government will create a mechanism whereby apartment blocks can restrict holiday letting of whole homes if they so wish.

The easiest way to do that is to allow the proposed “complying development” provision with exceptions and exemptions for apartment blocks. Then apartment blocks that want to do so will be able to continue to pass by-laws supporting their zoning.

Governments hate having to go back and change laws every time a loophole appears.  That’s why Strata law has three Acts – Development, Management and Regulations.  It’s the third of those that’s most flexible and that’s where we’ll see any changes that aren’t covered by other laws.

The Coure response specifically mentions that the SSMA will be reviewed after five years (not the three the Coure report calls for) so don’t expect any major changes in that area.  In the face of a changing landscape, I suspect the government is looking for flexible changes to laws that can be tweaked if and when any negative effects become evident.

They neither want to shut down Airbnb and its ilk, nor do they want online holiday lets to swamp residential housing.  So expect low impact regulations with enough flexibility built into it to keep it all under control.

But I would recommend any apartment block that doesn’t have a short-term letting (zoning) by-law in place already to get one soon.  It may be a lot harder to do after the laws are changed. 

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[Jimmy-T]

I think in the first instance, you need to have a chat with the landlord and tell them that it’s time the alleged drug dealer moved on.  Only they can terminate the tenancy – the owners corp can’t.

You might also circulate a “proposal” to install CCTV cameras to monitor common areas, pointing out that apartment front doors are common property so there are no concerns about privacy, under the law.

This need only be a kite-flying exercise, to see how the alleged miscreant responds.  Chances are they will be alarmed enough at the prospect of increased scrutiny to leave of their own volition.

Digby is quite wrong to say “If the tenant performs an unlawful act against you or the strata scheme there is not much you can do.”

Strata law doesn’t make you immune to common law.  Assaults, abuse, threats and illegal behaviour can be dealt with without any reference to strata law or, for that matter, residential tenancy agreements.

And strata law has several avenues, including Notices To Comply and NCAT orders to deal with bad behaviour.

However, it should be recognised that the high security and restricted access of modern apartment buildings make them a perfect haven for drug dealers and their ilk. That’s why some drug dealers are model neighbours – provided they don’t ply their trade in the actual building – as they don’t want to poo in their own nest, so to speak. 

But, as explained above, using a rented property for illegal purposes invalidates a lease – although you have to prove it.  

So quiet diplomacy with the landlord would be the first step for me.  They have a responsibility over the behaviour of their tenants and a gentle nudge may be all it takes. 

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[Jimmy-T]

@Susanp said:
Hi I would appreciate some opinions regarding how to handle a police drug raid that was carried out in around one of our strata villas.

They have not been to court yet nor have they been convicted. 

At this point in time, can we as the owners corporation tell them to leave based on this event alone?

No.  There is still a presumption of innocence in Australian law.  They haven’t been convicted or pleaded guilty to anything yet.

Does this illegal act fall outside strata legislation and by-laws rules and regulations ?

Pretty much – unless they were creating a nuisance or danger to other owners.

Apart from the obvious stress and great anxiety it has caused,  we are also concerned about the reputation and good name of our strata block.

The significant legal position comes under the Residential Tenancies agreement specifically clause 15.1:

15.1 The tenant agrees … not to use the residential premises, or cause or permit the premises to be used, for any illegal purpose …

If they were selling drugs from the unit they would be in breach of their rental agreement.  This would allow you to put pressure on the owner to evict them (under their obligation to moderate the behaviour of the occupants of their lot) or at least not renew their lease.

But while you are waiting for the trial, you might want to install some security cameras pointed at their front door which might persuade them that moving was a good idea

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[Jimmy-T]

Have a look HERE.

You will need to pass and register the other three by-laws as they should have been registered within six months of having been agreed. However, this is a good opportunity to review their intent and wording.

You can’t just keep using your previous by-laws – the new ones listed in the link above now apply.

141 Procedure for changes to by-laws
(1) An owners corporation may, in accordance with a special resolution of the owners corporation, change the by-laws of the strata scheme.
(2) A change to the by-laws of a strata scheme has no effect until:
(a) the owners corporation has lodged a notification with the Registrar-General in the manner approved by the Registrar-General, and
(b) the Registrar-General has made an appropriate recording of the notification in the folio of the Register for the common property.
(3) The secretary of the owners corporation must keep a consolidated up to date copy of the by-laws for the strata scheme.
(4) A notification cannot be lodged in the Registrar-General’s office more than 6 months after the passing of the resolution to make the by-law.

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[Jimmy-T]

You can elect just about anyone to the committee provided they are not a rental agent or building manager who is not also an owner.

However, someone who is unfinancial can’t nominate another  person or self-nominate.

Also, if at the time of specific strata committee meetings the SC member or the person who nominated them is unfinancial, then their vote doesn’t count (see the extract from the Act below).

That’s why all nominations for strata committee elections at AGMs need to be in writing (or at the very least, recorded).

Schedule 2, Part 3 Meeting procedure
9 Decisions at meetings
(4) Voting rights cannot be exercised if contributions not paid
A member of the strata committee is not entitled to vote on any motion put or proposed to be put to the strata committee if the member was, or was nominated as a member by a member who was, an unfinancial owner of a lot in the strata scheme at the date notice of the meeting was given and the amounts owed by the unfinancial owner were not paid before the meeting.

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[Jimmy-T]

It looks like mediation is free (didn’t realise that) but NCAT fees are $99 for an individual, $198 for a corporation and $25 for a concession.

https://www.ncat.nsw.gov.au/Pages/apply_to_ncat/fees_and_charges/fees_and_charges.aspx#ccd

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[Jimmy-T]

The Act only refers to non-member owners being able to attend and rather than you having to prove that they aren’t allowed, you can exclude them and leave it to them to prove that they are allowed (see below).

Even owners aren’t allowed to speak at committee meetings unless permitted by a majority vote of the committee.

Furthermore, Schedule 2 of the Act only allows for members of the committee to be represented by a non-member, provided they are approved by the committee. It doesn’t allow for proxies of non-member owners.

General meetings are different. Non-owners can attend as proxies.  The process of electing the committee is part of the AGM but the election of office-bearers is a separate committee meeting, usually held AFTER the conclusion of the AGM.

I think it’s reasonable to allow non-owners to represent owners at general meetings, but not to allow them at committee meetings, especially if they are disruptive.

Keep them out of the committee room and let them pursue you to NCAT if they feel they have a case.

13 Non-member owner may attend
An owner or, if the owner of a lot is a corporation, any company nominee of that corporation is entitled to attend a meeting but is not entitled to address the meeting unless authorised to do so by resolution of the strata committee.

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[Jimmy-T]

@Lady Penelope said:
Jimmy T – I am a bit confused about the terms (1) ‘co-operative housing’ and (2) ‘co housing’ (communal housing). Both appear to be quite different. Are you able to provide a definition of both? Which type are you advocating for?  

Not sure about co-housing but I first encountered co-operative housing in Glasgow  about 40 years ago and I thought it was a way of renters transitioning to home ownership in a kind of rent-to-buy scheme.  It was more like company title in that new residents had to be approved by the incumbents.

As James Brown says in his post, there are many very different models around the world and ours seems to be the least developed in terms of allowing private investment and as a pathway to home ownership.

The NSW model seems to be more about allowing like-minded people who would qualify for housing assistance anyway, band together to make the most of their rented accommodation.

All of this has sent me scurrying off to find out what Housing Co-ops in Scotland do and it seems they provide rented accommodation at rents lower than private rentals but higher than council rents with more responsibility on the tenants and better security of tenure.

I’m not advocating for anything in particular, except a situation where renters and first-time home buyers are treated more like a community and less like a commodity.  

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[Jimmy-T]

I am happy to advise theat two of our sponsors may be able to help you with this.  Magnatex might come up with an alternative solution (since rusting rods are their stock in trade) and Lannock may provide the finance to avoid a special levy.

Click on their ads and talk to them.  If you can come up with better alternatives then the committee surely must at least listen.

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[Jimmy-T]

@bluehouse said:
Sir Humphrey, What you describe sounds logical, but our committee doesn’t have authority to approve an alteration that requires a special by-law.  And don’t have authority to approve on behalf of the Owners Corp. 

We have had trouble in the past with the committee approving something that we already had a general bylaw covering, on condition the requirements of the bylaw were met. The owner went ahead and built the addition and when the requirements weren’t met it became very difficult to deal with the situation and impossible to rectify without asking the owner to remove the addition (which the committee were unwilling to do).  

As you say, the committee doesn’t have the power to approve or otherwise but it does have considerable influence and it could set the parameters that would have to be met before the proposal went to a general meeting with its support.

Making the support provisional on certain conditions could work if one of those conditions was that the owner agreed that failure to do the work agreed in the conditions would lead to the common property being restored and the new construction removed at the owner’s expense.  

Of course, if the committee doesn’t have the stomach for anything so confronting then they should step back and require the owner to take whatever laborious steps are required to get this done through the normal processes.

Don’t forget, the owner is interested in only one thing – getting what they want as quickly and economically as possible.

The committee has to be interested primarily in what’s best for the whole building, now and in the future, not just one owner.  They should not allow themselves to be railroaded by one person.

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