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Dear Penelope
Do you not see the difference between a relative staying over and an Airbnb; having advertised a residential home for short-term let to tourists/visitors on a booking platform, from night one, this is a commercial use of a residential home – yes?
No, I have never stayed in an Airbnb and I do all within my power to avoid such circumstances. I respect the rights of residents to housing and the rights of neighbours to their neighbourhood and communities.
If you had watched the media stream, including Jimmy Thomson’s writings, and the Neighbours Not Strangers Facebook page/Media Releases, you would have been aware of the situation in Barcelona and practically every other city and major regional centre around the globe. Almost universally officials are endeavouring to protect the rights of citizens and neighbourhoods and communities.
“Australia is our most penetrated market”, Airbnb’s Sam McDonagh. Sydney ranks 4th in the world in terms of Airbnb listings. There is an unknown number of platforms/clones penetrating our residential housing.
Please speak with those who have been forced to live with neighbouring properties let short-term. The NSW Land and Environment Court discribes such a ‘mixed use’ as “fundamentally incompatible”; neighbours refer to it as “a living hell”.
There are residents all across NSW who are calling for the residential zoning on our buildings and suburbs to be upheld and respected, with local Councils mandated to enforce Planning and Zoning legislation. There should be no retrospective changes to the status of our homes – owners have undertaken all due dillegence when purchasing into residential strata and residential suburbs.
So back to our legislation – NSW probably has world’s best legislation and case law. Our Legislators should be forced to legislate.
Hi Jane
Short-term tourist/visitor letting agreements are definitely not residential tenancy agreements. One NCAT adjudicator, D Charles, remarked in giving Orders that the NSW Legislation is “crystal clear”:
“The Tribunal notes that as between the respondent and those occupying his premises under short term tourist or visitor accommodation agreements the Residential Tenancies Act 2010 (RTA) does not apply: see, particularly, section 7 and section 8(h) of the RTA.”
Section 7 – click here
Section 8 – click here
Thus, if the Development Approval says that all residential lots must be occupied by an owner/occupier or someone holding a residential tenancy agreement, short term lets would be – in the City of Sydney’s words – an “unlawful use of premises”. There goes the mandatory building insurance should someone be injured or worse, or should a major incident be provoked by someone occupying without a residential tenancy agreement.
Hope this helps
JimmyT
Sincerely, thank you so much for all your work on this critical issue which affects residential suburban home owners/residents plus those in strata where we are one wall away from this mess.
NSW have brilliant legislation spread over every area of legislation one can imagine – that’s my personal impression.
From what I’ve learned to date, it is up to local councils to enforce the Planning and Zoning on homes/strata buildings and they simply refuse to do it.
We battle on, with the Department of Planning advising that once the ‘Options Paper’ is released there will be a further three-month consultation period… This will bring to two-years the date at which the NSW Government began their Inquiry and around six years since the issue was flagged within Government.
In the meantime, we have to rely on Local Councils, who place LGA bans on those who write on this issue.
Cheers
Puddn
Keep your eyes on JimmyT’s writings and send an email to neighboursnotstrangers@gmail.com – they too will keep you updated via email/Facebook.
It’s our homes we’re talking about…that’s why our Politicians need to understand that we’re not giving up!
Best wishes
JimmyT said:
“…a former hotel that had several floors in an apartment block. And weren’t the operators shut down by City of Sydney, anyway?”
My understanding was that the ‘several floors’ were still zoned residential. And, as in the case in the building in which I live, after the City of Sydney shut down the STRs, only four months or so later, up they’ve sprung again and the City won’t do anything about it.
The written advice I have from the NCAT’s Deputy President Stuart Westgarth was clear: The NCAT will not deal with matters of Planning. This is a Local Government issue. (A 1,200-page Submission to the CTTT/NCAT documenting every aspect of short-term letting in our residential building, including the breach of insurance terms and conditions was dismissed.)
Puddn/Lady Penelope, the critical elements from the Dobrohotoff v Bennic case law is this judgements:
“(The Respondent) readily agreed that she could not guarantee compliance with the House Rules or the Code of Conduct.
…the harm caused to the environment is not limited to the undermining of the planning regime. The adverse impact on the amenity and wellbeing of the (Residents) has been, as the evidence overwhelmingly demonstrates, severe.
By leaving it to the Court to determine this important issue, the council, by its inaction, has, in my opinion, failed to fulfill its core functions and has failed its constituents.”
Pudd, for matters Strata, there are numerous case law examples, links to which can be found here. Of most help to us (in my opinion) is the 187 Kent Street and appeal. In these two judgments you will see where the City of Sydney set out for the Court the arguments of why mixing short-term tourist/visitor accommodation – serviced apartments – with permanent residential occupants is “fundamentally incompatible”. The judges agreed with these arguments.
To date, in all instances where the issue of short-term letting in a residential environment has been brought before the NSW Courts, the Judges have agreed with the concept of “fundamental incompatibility”. (I’m currently in Canada, meeting with other anti-STR campaigners. The Courts in Ontario recently came to an almost identical judgment.)
Our argument: all due diligence is (supposedly) taken when purchasing into residential property which, for many, is the largest investment one undertakes. Our titles are over residential property. Why then should legislation be retrospectively changed to alter our living environments, forcing us to reside in hotels/transit zones? What compensation should there be for such a change in our living standards? Plus, how will all levels of legislation, from the Building Codes of Australia, Fire & Rescue, Disability Discrimination legislation etc be dismantled across every form of ‘occupation’ from hotels to backpacker lodges, to facilitate Airbnb and every other unlicensed accommodation ‘booking platform’? Is the entire accommodation Industry to be deregulated, or just those who penetrate our housing and will those who have gone to the expense of installing BCA Class 3 grade infrastructure and paying commercial rates also be compensated?
Let’s now see what JimmyT gets by way of a response from the AG and Matt Kean’s Offices. The question was asked: Did the NSW Parliamentary Hearing Committee seek/obtain legal advice Legal Advice during their Inquiry into the adequacy of legislation covering short-term letting in NSW? The response received was: “No.”
One can/should argue that NSW has ‘world’s best’ legislation; local councils should be mandated to enforce the legislation. Plus: how can any government ignore the housing crisis engulfing not only Sydney but regional centres from Tweed to Albury? NSW has lost 58,250+ homes to Airbnb/Expedia alone with literally hundreds of other platforms/agents offering our homes to tourists/visitors from every country except Syria, Iran, North Korea – while residents are robbed of access to these homes unless they’ll pay the hugely inflated prices charged to tourists.
Residential Housing is for housing Residents.
Hoping this helps – this is what I found on the NCAT’s Website in July 2016. I sent this message to various other strata lot owners so have been able to retrieve it. Perhaps someone with a legal background could take a look and help with advice.:-
“It appears that someone has challenged a Special Short-Term Letting By-Law through the NCAT and won.
So for those in Strata, is it back to Local Government – who issued the DA – and, as per submissions and statements made under oath to the NSW Parliamentary Hearing Committee, practically every Local Government has a moratorium on taking any action whatsoever against those short-term letting:Holiday lettings
The order making power which an Adjudicator has under sections 157 and 159 of the Strata Schemes Management Act 1996 provides a means of redress where the original by-laws are changed in a way that may lead to an injustice.A high-rise apartment building leasehold scheme located in Sydney’s Darling Harbour was managed by a large hotel group for some time, and a number of lot owners had made their apartments available for short-term holiday leases through the hotel group.This situation changed when the hotel group vacated the building and an extraordinary general meeting of the owners voted to adopt a special by-law to prevent short-term leases and serviced apartments. The special by-law prohibited the use of lots for commercial or retail purposes, including the use of lots as serviced apartments or short-term rentals.A lot owner made an application for Adjudicator orders to repeal or invalidate the special by-law under section 157 or 159 of the Act, so that they could continue to lease their apartment to tourists and visitors.The owners corporation’s written submission stated that the use of serviced apartments and short-term leases created security, health and safety issues as well as adversely affecting the general amenity of the building.Section 159 of the Act allows an Adjudicator to set aside a by-law if the owners’ corporation did not have the power to make the bylaw. However, section 49 of the Act also provides that a by-law cannot prevent any dealings relating to a lot.The Adjudicator considered that the new special by-law led to restrictions that were not compatible with section 49, and was therefore outside the by-law making power of the owners corporation pursuant to section 159 of the Act. The Adjudicator also considered section 157 under which a special by-law can be repealed if it is considered that it should not have been made having regard to the interest of all lot owners in the use and enjoyment of their lots.As the owners corporation did not provide any explanation or evidence in support of their statement, the Adjudicator was not convinced that the adoption of the special by-law was necessary for the good management of the property. Orders were made declaring the special by-law invalid.”Hi Puddn
Keep it quiet: should any of your owners challenge you and you take them to the NCAT, the NCAT will dismiss any request or Orders to ban their STRs. One owner in an apartment block in Sydney’s Ultimo has challenged his OC and the NCAT has reported that the OC is powerless to stop him (or a ‘her’).
It must be understood: the Development Approval is granted by the Local Council and it is the Local Council’s responsibility to enforce it’s DA/Planning/Zoning legislation.
There is one case in NSW where the Council failed to act and after years of “sever” impact, the neighbours took the matter to the Land and Enviroment Court. Click here. This case law makes for excellent reading.
Cheers
Hi Lady Penelope
Hope the following assists. Assuming you get Orders under the NSW Residential Tenancies Act (not the Strata Act), one could then issue an Order to Comply under the standard by-law on ‘Change of Use to be Notified’. Then also check the terms of the mandatory building insurance policy. All Strata Committees are obliged to advise their Insurer of any such “Illegal Use” – City of Sydney’s quaification of this type of letting. (In our case, our Strata Committee refuses to act against those currently short-term letting despite our Land and Environment Court Orders), claiming that short-term letting isn’t a strata issue – which it obviously is):
NSW Strata buildings – quoting just one of many Determination of Development Approvals of which I know. It’s important to check the exact wording on the DA:
“The development must be used for permanent residential accommodation only and not for the purpose of a hotel, motel, serviced apartments, tourist accommodation or the like, other than in accordance with the Residential Development Policy for the City Centre, adopted 12 August 1993…All units approved for permanent residential accommodation must be either owner occupied or occupied by a tenant with a residential lease under the Residential Tenancy Act, 1987. A certificate signed by the owner or the body corporation…or a solicitor…must be forwarded to Council…every 12 months, certifying that all units approved for Residential Development are either owner occupied or a subject to residential leases under the Residential Tenancy Act…”
NCAT Orders against Airbnb letting agreements: RT 15/37925, D Charles Tribunal Member 22/06/15: “The Tribunal notes that as between the respondent and those occupying his premises under short-term tourist or visitor agreements the Residential Tenancies Act 2010 (RTA does not apply: see, particularly, section 7 and section 8(h) of the RTA.
NCAT Orders against Wotif/Bookings.com/etc, etc letting agreements: RT 15/37922, D Charles Tribunal Member 22/06/15: “The Tribunal notes that as between the respondent and those occupying his premises under short-term tourist or visitor agreements the Residential Tenancies Act 2010 (RTA does not apply: see, particularly, section 7 and section 8(h) of the RTA.
Quoting from the NSW Residential Tenancies Act:
Section 7 Premises to which Act does not applyThis Act does not apply in respect of the following premises:
(a) premises to which the Landlord and Tenant (Amendment) Act 1948 applies,
(b) premises used to provide residential care or respite care within the meaning of the Aged Care Act 1997 of the Commonwealth,
(c) serviced apartments, that is, buildings or parts of buildings used to provide self-contained tourist and visitor accommodation that are regularly cleaned by or on behalf of the owner or manager,
(d) premises used as a hotel or motel,
(e) premises used as a backpackers’ hostel,
(f) a hospital or nursing home,
(g) any part of a club used for the provision of temporary accommodation,
(h) premises used for residential purposes, if the predominant use of the premises is for the purposes of a trade, profession, business or agriculture.
Section 8 Agreements to which Act does not apply:
(h) an agreement made for the purpose of giving a person the right to occupy residential premises for a period of not more than 3 months for the purpose of a holiday,
NSW Fair Trading has a standard by-law which covers the need for Owners to comply with all ‘laws’ applicable to your building. Just Fair Trading and ask for a copy – there you will have the approved/accepted wording.
Back in early 2016 the Deputy President of the NCAT, Stuart Westgath, wrote that short-term letting was a matter for Local Councils and that the Tribunal had absolutely no authority over matters of Planning. So, go back and check the Development Approval on your building. In NSW Strata it is normally crystal clear what is/isn’t approved when it comes to short-term tourist/visitor lets.
One need only look at buildings such as Sydney’s Maestri Towers and Bridgeport to understand what short-term letting in residential buildngs/neighbourhoods means. The NSW Land and Environment Court has consistently judged mixing the two ‘uses’ as “fundamentally incompatible”. Those who’ve been forced to live in neighbouring properties to STRs call it a “living hell”. Note well: Airbnb and other STR operators are running programs in the US etc whereby they are seeking to control entire apartment blocks.
You can go to the NCAT and, under the Residential Tenancies Act, get Orders declaring the Airbnb/other short-term letting agreements ‘non-residential tenancy agreements’ – see sections 7 and 8(h) of the NSW Residential Tenancies Act. Apply, not as a Landlord/Tenant, but as the ‘Other’ person. Box provided…just tick it. A precedent has been set, so there should be no argument against this. You must make application for against each Owner – don’t attempt to roll together several owners and don’t apply against the letting agent/platform. You are seeking orders against the owner in your building.
Also check your mandatory building insurance policy: a Term of Condition will usually read that ‘all laws governing the building must be complied with’. If not, the insurer has the right to withhold payment in the event of a major claim. So if you have owners short-term letting, they are not complying with the Development Consent.
Once you have the Orders from the NCAT, then hit the owners with Orders to Comply for not advising a ‘change of use’ and compromising your mandatory insurance policy.
Councils should be mandated to enforce their zoning. Owners have done due dilligence when they bought into Strata/Residential Suburbs. Ministers in NSW are being asked what compensation will be paid if they alter legislation which will see buildings/suburbs zoned residential converted to hotels/transit zones.
Meanwhile a City of Sydney staffer volunteers that Council will investigate STRs in a building where Council obtained Court Orders bannng the practice, and then when documents are sent providing details of new listings, the CEO marks the correspondent as vexatious.
Hope this helps.
This is a really interesting topic.
For the last 4-5 years one has been documenting the constant breaches of various and multiple levels of legislation within our Sydney Strata Scheme.
There have been two applications to the CTTT (1,200 pages) and NCAT which have been ‘dismissed’ by the Adjudicators, firstly as a result of a promise made by the respondents which was never actioned, as anticipated and previewed to the Adjudicator, and secondly on the basis that the applicant (me) is vexatious.
When anomalies occur one continues to submit Motions for Agendas, referring to the particular legislation for which one is seeking compliance. Every single motion has always been ruled either ‘out of order’, ‘vexatious’, or simply defeated by the incumbants on the Strata Committee.
All offers and requests to hold a simple conversation with resident owners have been rejected. So too an official request for Mediation with the NCAT.
Now the term ‘attempted bullying’ is being used to describe requests to see legislation and correct procedure followed.
Ah, strata. Pure theatre or real life?
Please catch up. There are literally hundreds of these property managing agents for Airbnb and all the other platforms. Airbnb even has their own property managers; they call them ‘co-hosts’. Go to their home page…top right, see ‘No Time to Host’, and click.
Neighbours Not Strangers have produced a Report for Government, which was current as of Tuesday this week.
The situation is fluid and the penetration into housing is ever increasing. AccorHotels wants “to punish” Airbnb for taking their hotel business away from them so Accor Hotels has bought the web platform “OneFineStay”. Airbnb is now renting homes as business ‘chill out’ rooms or ‘meeting spaces’, to compete with all the other web platforms offering minimum 30-minute bookings in homes.
Residential Housing is no longer for housing Residents….unless our Government and Local Councils start enforcing some legislation.
At least with forced sales the 25% opposing get bought out/compensated. This proposal leaves up to 25% trapped in a building with ‘mixed use’ – which is “fundamentally incompatible”, so say the repeated and consistent judgments of the NSW Land and Environment Court – plus having to pay hand over fist for extra costs associate with STRs.
Sell up/move on – costs around $100k? Then three weeks later the committee in the new ‘home’ votes to accept STRs.
Three ‘C’s of good Planning: clarity, consistency, certainty.
Community Groups already planning legal action against councils if residential suburbs are rezoned as ‘transit’ ares. Same, same with some strata residents.
Residential Housing is for Residents. Homes aren’t hotels. People have made purchases based on a property being a residential property.
EdwinZ
I’m really confused: why do you claim to be a ‘host’ when you’re clearly a landlord?
“Make no mistake, whilst there are many hosts who still harbour warm, fuzzy feelings towards Airbnb, there are also many who long for the day that some viable competition emerges.”
Please: are you talking about renting Residential Housing? Residential Housing is for the housing of Residents, which is totally legal and absolutely accepted. Why are you involved with Airbnb…maximum profits at everyone else’s expense?
Probably no one has ever objected to an investor or landlord renting residential homes to residents. If one’s seeking maximum profits from commercial rentals there is always investment in serviced apartments/hotels etc, etc, which again no one has ever objected to.
On the matter of limiting the number of days a residential property can be short-term let each year, personally I find this scheme ridiculous. If there were no problems with STRs no one would object. But there are massive problems. Why subject neighbours to STRs and its problems for ‘X’ number of days a year…and who will/can ever police such a scheme?
Homes are not Hotels. And neighbourhoods are not Transit Zones/Tourist Camps.
Tharra’s (5) comments and fears about the Childers Fire and short-term letting in residential properties are well founded. Neighbours Not Strangers sent a Media Release on 16 Feb 17 – it wasn’t picked up anywhere – and it featured this issue. It’s on their Facebook page or email them: neighboursnotstrangers@gmail.com. They’ll probably be glad to forward it to you. They also refer to Connie Zhang’s death at Bankstown plus the Shipping Container fire at Alexandria/Waterloo. Jimmy T had an article published – Shipping containers of strata shame – but the link is no longer working.
Airbnb’s insurance guarantee runs to about $1 million, if you can get it out of them. No one at the NSW Parliamentary Inquiry into short-term letting would guarantee payout on a building worth, say, in excess of $100 million, plus loss of life $8 million or there abouts, plus permanent incapacitation $? millions.
Strata Lot owners in NSW carry unlimited liability.
I refuse to use Airbnb’s marketing jingo: In the real world this is called attempting to bribe investors within Owners Corporations with COMMISSIONS.
When people bought into a Strata/Company Title building they voted to partake in a Residential Building and a Residential Community – the vote has already been cast.
There’s absolutely nothing stopping investors purchasing into Serviced Apartments buying Hotel shares; that’s where short-term tourists/visitors belong.
Airbnb/Stayz/Expedia et al have absolutely no right to penetrate our homes/properties with short-term lets. Go to NSW Land and Environment Court case law judgements for affirmation on this.
Airbnb will never, ever give up on trying to gain maximum profits from our housing. If it simply means less income spread over millions more Residential Lots/Homes, they’ll take it.
They now have USD31 billion to fly reps around the world plus they have the muscle to get legislators to ‘open doors’. Keep writing to your State MP plus Ministers Keen/Roberts/Dominello.