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There are different rules for people flying drones for commercial gain and those doing it for fun, there also different rules for large companies, small companies and individuals, not to mention large drones and small ones.
Have a look here and HERE, just to give you an idea of the complexities.
Privacy laws (such as they are ) are another completely different kettle of fish. There is no right to privacy, per se, in Australian law, just the right to not have your privacy invaded for nefarious purposes.
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In the absence of any official decision, by special resolution, not to maintain and repair the ducted air-con, the owners corp has a legal obligation to do so. If they refuse or fail to respond to a request within two months, you can take them to the tribunal Under Section 232 (2) of the Act (below) and request orders compelling them to do so.
Lack of funds is not an excuse, neither is the fact that other people have installed split systems.
So here is what you need to do.
1. Write a letter asking the owners corporation to fix the air-con under its legal responsibility to maintain and repair common property. Explain that failure to do so will lead to action at NCAT seeking orders under Section 232.
2. If they say there’s no money in the sinking fund to do this, explain that’s irrelevant and anyway it’s a consequence of poor budgetting and “saving money” in the past.
3. When they try to scare you off with a special levy, point them in the direction of our sponsors Lannock Finance (see top of this page) will arrange a loan that can be paid off over several years.
4. If they haven’t started the process of getting this done with any serious intent withing two months, start your action at NCAT.
Here’s an extract from section 232.
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:
….
(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme …(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
I have known and worked with Suzie Broome and Bev Hoskinsson-Green of our sponsors Sachs Gerace Broome for years. David Sachs is a good operator too. There’s a link to them on the home page of this website
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I think the question of the degree of use is critical in all this, especially since we are all looking round for a “silver bullet” one-fix-fits-all solution – and the proposed ‘complying development’ suggestion is certainly not that. In fact, I don’t believe the silver bullet can ever exist.
However, the law is about to change, one way or another and new set of case law will have to be established to reflect that. In NSW we know that the Land and Environment Court says that residential lets and holiday lets are different (and, I think, set the minimum period for the former at three months). We know City of Sydney defines residential lets, for the purposes of its zoning, at three months, and other councils do so too.
But what about other forms of temporary accommodation? For instance, house swaps, pet-sitting, family timeshares and, yes, airbnb lets where the owner is away for a month or two on holiday or business but doesn’t intend to run their home as a commercial holiday let after they return?
Our legislators seem to lack the level of sophisticated thought that would allow them to accommodate all the nuances of allowing your home to be used by non-residents, either for money, for free or for a quid pro quo.
So they have been nudged towards the most libertarian option of allowing anybody who wants to let their homes under any circumstances to do so for a period of time before anyone comes knocking to see what they are up to.
They have also decided that the difference in impact on apartments and free-standing houses is negligible, presumably on the grounds that nobody knows what you are doing in your house and nobody cares what you are doing with your apartment.
We know different.
The issue of invoking the terms of Model By-law 17 is just part of a layered response to short-stay letting that is, for want of a better word, harassment of people who refuse to acknowledge that the majority of owners and residents in a building, collectively have rights that over-ride individuals’ desire to make money. This was outlined in my story in the SMH this weekend. If you haven’t already, read the story then look at some of the comments.
Now consider this. Under the new and previous strata laws, you can’t smoke in your house if it affects your neighbours. You can’t have noisy parties at any time of day or night. You can’t park on common property without written permision. You can’t park your second car in visitor parking. You can’t paint the outside of your front door or your balcony rail a different colour without written permission. You have to abide by the opening times of the swimming pool if you have one. You can’t leave your garbage in your hallway until you are ready to dump it. You can’t take over the loft space right above your unit, just becasue no one else can use it.
And here’s the clincher, 75 percent of your neighbours can decide that it suits them to sell your (and their) units to developers, regardless of the age or condition of the building, and there’s NOTHING you can do about it.
So the whole principle of the inviolability of property rights in strata no longer exists in NSW. The government has quite deliberately blown it out of the water – possibly for good reason, possibly not. But they just haven’t come fully to accept that community needs should over-ride individual greed.
Maybe somebody, somewhere will take this to the High Court and successfully argue the case that Section 139 (2) – “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” – cannot exist at the same time as Section 10 of the Strata Schemes Development Act which allows a majority of owners to ‘extinguish” a strata scheme.
Until then we have to scrabble around bolting bits of by-laws that may or may not be valid to management practices that may or may not be legal to keep holiday lets out of buildings where they are not wanted.
The reassuring thing is that none of these disruptive tactics can occur without the approval of the majority of owners in a building. Nothing disrupts the disruptors like democracy.
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@proudsceptic said:
The position that: any use of premises as short term accommodation is materially different to a use as a single dwellinghouse because it is not a use of the premises as “the long term home” of persons comprising a household, has not been supported in case law.Interesting. In a letter to our friend Catherine Lezer (a director of OCN and a candidate in the recent City of Sydney elections) Fair Trading Commissioner Rod Stowe said this of short-stay lets:
The Act … provides a number of provisions which may be of assistance to strata schemes facing problems regarding short-term letting.
For example, model by-law 17 in Schedule 3 requires an occupier of a lot to notify the owners corporation of any change to the use of their lot for short-term or holiday letting.
The notice would have to be given in writing at least 21 days before the change occurs or a lease or sub-lease commences. Such a by-law would provide an owners corporation with enough notice of short-term letting so arrangements could be made on matters such as safety and security.
If the Fair Trading Commissioner says short-term letting is a change of use, and so do the model by-laws, that’s certainly something you can take to NCAT although there’s no guarantee that the Member will understand or care.
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If your your building is zoned residential only (in NSW) the simplest way to discourage short-stay rentals is to pass a by-law saying that your strata scheme supports and abides by its council zoning and that any breaches of the residential only zoning, for instance by rentals of less than the period prescribed in the development approval, will be treated as a breach of by-laws and pursued at the NSW Civil Administration Tribunal. Or you could just adopt Model By-law 18 (below).
However, if your building isn’t zoned permanent residential the insurance option is possible – if you can find an insurer who plays ball.
In the discussions I have had with insurers, most have told me that there would have to be a substantial number of units in a building that converted to short-stay lets – some say as many as 25 to 30 percent – before they adjusted premiums upwards.
However, the first insurer who realises the potential for making extra money and helping out apartment blocks that don’t want short-stay rentals could cash in big time.
The new laws allow the additional costs of insurance that are brought about by a change of use to be passed on to the owners of the properties concerned (See Section 82, below). If the owner doesn’t agree to the additional charges, the Tribunal can order them to pay.
What does all this mean for owners corps that don’t want short-term lets?
If you are in a newer (post-1996) scheme, you could adopt Model By-law 17 in Schedule 3 of the Regulations (also below).
Model by-law 17 requires an occupier of a lot to notify the owners corporation of any change to the use of their lot for short-term or holiday letting. The notice would have to be given in writing at least 21 days before the change occurred or a lease or sub-lease commenced. Remember, these model by-laws do not automatically apply and have to be adopted by special resolution.
If you are in a pre-1996 building, you will automatically have by-law 19 (below). You could alter its wording (through special resolution) to make it clear that using lots for short-stay lets is a change of use.
Under either of these by-laws, any owner who changes to short-stay rentals should register a change of use or face a breach notice and potential fine from NCAT. By the way, the fine would be paid to the Owners Corp so it is worth pursuing.
Then find an insurer that will charge punitive additional premiums for buildings that have short-stay lets and then pass the additional charges on to the “hosts” who have registered their change of use.
Also, once an appropriate “change of use” by-law is in place, you might consider passing a motion at a General Meeting saying something like:
This strata scheme does not support or encourage short-stay or holiday letting. We define the change of residential lets to short-stay lets as a change of use as per by-law X. This owners corporation instructs its officers and managers to identify and pursue non-notification of changes of use as by-law breaches.
Furthermore, this owners corporation will pass on any increases in insurance premiums caused by changes of use to short-stay or holiday letting to all owners who let their units in this way, pro rata based on the number of lots used for short-stay lets, as outlined in Section 82 of the Strata Schemes Management Act.
This motion is not a by-law so wouldn’t need a special resolution. But just having that in your AGM minutes, reiterated every AGM, may be enough to drive potential holiday let investors away without even having to pick up the phone to your current insurer.
Here is the by-law that automatically applies to pre-1996 schemes.
19 Change in use of lot to be notified
An occupier of a lot must notify the owners corporation if the occupier changes the existing use of the lot in a way that may affect the insurance premiums for the strata scheme (for example, if the change of use results in a hazardous activity being carried out on the lot, or results in the lot being used for commercial or industrial purposes rather than residential purposes).And here are by-laws 17 and 18 in the Model By-laws in the new regulations. NB: These by-laws or variations on them would have to be adopted by special resolution by post-1996 schemes that don’t already have them in place.
17 Change in use or occupation of lot to be notified
(1) An occupier of a lot must notify the owners corporation if the occupier changes the existing use of the lot.
(2) Without limiting clause (1), the following changes of use must be notified:
(a) a change that may affect the insurance premiums for the strata scheme (for example, if the change of use results in a hazardous activity being carried out on the lot, or results in the lot being used for commercial or industrial purposes rather than residential purposes),
(b) a change to the use of a lot for short-term or holiday letting.
(3) The notice must be given in writing at least 21 days before the change occurs or a lease or sublease commences.18 Compliance with planning and other requirements
(1) The owner or occupier of a lot must ensure that the lot is not used for any purpose that is prohibited by law.
(2) The owner or occupier of a lot must ensure that the lot is not occupied by more persons than are allowed by law to occupy the lot.And finally, here is Section 82 of the Act which applies to all strata schemes.
82 Individual contributions may be larger if greater insurance costs
(1) If the use to which a lot in a strata scheme is put causes an insurance premium for the strata scheme to be greater than it would be if it were not put to that use, so much of a contribution payable by the owner of the lot as is attributable to insurance premiums may, with the consent of the owner, be increased to reflect the extra amount of the premium.
(2) The Tribunal may, on application, make an order for payment of contributions of a different amount to one or more contributions levied or proposed by an owners corporation on an owner if the Tribunal is of the opinion that the owner’s consent has been unreasonably refused under this section.
(3) An application for an order under this section may be made by the lessor of a leasehold strata scheme, an owners corporation, an owner of a lot or a mortgagee in possession.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
I think you need to look at the new laws on renovations which apply to all buildings regardless of age.
If you look at page 37 of the new Strata Living handbook it says you need approval by a simple majority (rather than a special resolution) at a general meeting:
Minor renovations – Includes renovating a kitchen; changing recessed light fittings; installing or replacing wood or other hard floors; and reconfiguring internal walls.
Other items usually considered to be minor renovations are sustainability measures, such as clothes lines and air conditioners.
Lot owners must get the approval of the owners corporation by general resolution (50% of those entitled to vote at a meeting) before any work can commence.
Lot owners may need to provide details of the work including:
the work, such as any plans
the duration and times of the work
the people who will carry out the work, including their qualifications.
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@selmuni said:
As a full subscribe to this contractual protocol in place is this not illegal and unwarranted? Possibly even prejudicial? Where to from here?OK, take a look at the sentence reproduced here. It doesn’t make any sense. Please try to keep your questions to the point and in simple English (not lawyer-speak).
Now, from what I can tell, you have asked your building manager to remedy a problem with tenants and they have failed or refused to do so.
You are now trying to show that they have not addressed the issue properly by ignoring your letters or answering a different question from what you asked.
Forget claims of conflict of interest or any other conspiracy theories. There are simple remedies available to you under Section 232 of the Act (extract below) whereby the Tribunal can order the Owners Corporation to fulfill duties that it has declined or ignored.
The Owners Corp can’t choose when it deals with issues – the time limit (two months) is established by law.
So I suggest you apply for the obligatory mediation on this form and then apply for orders under Section 232 (2)(a) – decision not to exercise a function.
Have a look at section 232 below. I suspect that when you go to these managers and tell them that you are taking them to Fair Trading and NCAT seeking orders, they might start listening.
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,
(b) an agreement authorised or required to be entered into under this Act,
(c) an agreement appointing a strata managing agent or a building manager,
(d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,
(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,
(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
The pre-sale of caretaker-manager contracts in Queensland is institutionalised corruption which is illegal in NSW and Victoria (and possibly elsewhere).
All it does is put more money into developers’ pockets – money which is added to the fees paid by unit owners for no other reason than to pay back the initial investment. There is no evidence that this money benefits apartment purchasers in any way.
In exchange, the manager gets to choose the terms of the contract and pass them on to the next incumbent for whatever profit they can make, and so the cycle continues.
This has more than a whiff of “white shoe” about it and is an ugly stain on the face of Queensland strata. Even uglier are the professional groups who should know better but support and sustain this fundamentally corrupt institution for no better reason that knowing on what side their bread is buttered.
Some day a Queensland government with a streak of integrity will shut this cash cow down. I’m sure there are many caretakers in Queensland who do a good job for a reasonable fee but there is a Murphy’s law in business – if the law is bent out of shape so people can be exploited, then they will be.
By the way, I have spoken at many Queensland conferences on this and I have yet to find anyone who can up with a convincing argument as to why Queensland needs this law and the rest of the country doesn’t.
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I juust found two positions offered on Seek. One is $70-75k and the other is $70-90K. So there’s your ballpark.
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@fred11 said:
Can someone tell me the problem, preceived or actual, with :-– leases of a minimun of 3 months, thru a RE Agent
– leases which meet the local council’s DA/LEPs requirements
Are you not reading the responses to your questions above? By-laws that simply set out to restrict short-stay lets are invalid.
By-laws that restrict lets to periods that differ from the zoning of the building are similarly void.
What does this mean to you? You can ignore breach notices if you are sure the by-laws on which they are based are incompetent. All that will happen is that the Owners Corp will take you to the Tribunal and the case should be thrown out.
Or, you could show your committee members this correspondence and tell them to get back to you when they have a valid case to pursue.
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Can you prove yopu made the payments (apart from showing receipts)?
OIf the strata manager is incompetent and a bully raise it with the Owners Corp and ask for a motion to be added to the agenda of your next AGM calling for his replacement as strata manager.
Meanwhile, contact Fair Trading (Tel. 13 32 20) and make an official complaint.
As we have said many times on this forum, the strata manager is supposed to do what the owners corporation and strata committee tell them, not the other way round.
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I can tell you pretty much exactly what they will say: “Have you raised this with your strata committee?”
To take a complaint to Fair Trading you have to show that you have been denied your statutory rights.
Why are you not approaching your strata manager on this? Or don’t you have one?
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@PeterC said:
Is there a managing agent? You can request to view the OC records.Yep. You may be asking the wrong people. The lawyers will have all sorts of legitimate reasons for refusing to hand over correspondence and the strata committee may have their own agenda.
But, by law, the strata manager has to show you the records, including any official correspondence (if they have it). If they don’t and the committee refuses, put a motion up at the next strata committee meeting or, even better, AGM, demanding that they be made available to owners.
You are party to the decisions, you are contributing to the bills and you are partly liable for the consequences of any decisions made, so you are legally entitled to see the correspondence.
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All of the above is correct. It turns out you can’t have a by-law restricting short-term letting. You can however have by-laws that restrict letting to the terms of the zoning applicable in the Development Approval.
It’s interesting that despite City of Sydney’s vacillation on this issue, its DAs for apartments in residential only zones say specifically that apartments must not be used or advertised for tenancies less than three months (see below).
So, in this case, find out what the zoning is for your building. If it is “residential only” find out what council means by that. Also check what it says about holiday letting (if anything) in your DA.
Finally, tell your strata committee that they can’t have a by-law restricting the length of rentals – or, at least, if they do have one it can be challenged at NCAT and will probably be revoked.
However, they can have a by-law telling owners they must abide by the terms of their council zoning, whatever that may be. Doesn’t it amount to the same thing?
No. Strata scheme by-laws are superseded by superior laws (like council planning regs) but if you depend on the planning regulations to restrict short-stay lets, you also depend on your local council having the wherewithal and will to enforce them.
However, if strata schemes enshrine council zoning restrictions in their by-laws (which is clearly not trying to supersede superior laws) then the strata committee can pursue miscreants themselves without waiting for the council to do something.
Of course, once our MPs have handed the golden egg to short-stay letting agencies by making holiday lets partially exempt from planning restrictions, all our protections will evaporate.
Meanwhile, here is an extract from a Development Approval for a unit block currently under construction in Darlinghurst (my emphasis in bold).
The following restriction applies to buildings approved for residential use:
(a) The accommodation portion of the building 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 and restricting any change of use of those levels from residential accommodation as defined in Sydney Local Environmental Plan 2012. The covenant is to be registered on title prior to an Occupation Certificate being issued or the use commencing, whichever is earlier, to the satisfaction of the Council. All costs of the preparation and registration of all associated documentation are to be borne by the applicant.
(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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