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Hi Jimmy
Any idea how the City of Sydney is going to monitor and legislate its recommendation to Parliament that people can rent out rooms in homes as long as they, the resident, are there? We’ve had Airbnb adverts for units in our building, listed as ‘private room’, yet when the reviews are posted, frequently it has said that those visiting were “left alone to enjoy the building” or, “there were other Airbnb guests in the other bedrooms”.
I was at a Meeting of the City of Sydney when the Lord Mayor tabled a ‘Minute‘ of just some of the correspondence the Council had had with the NSW Parliament requesting action against short-term letting.
There’s also a copy of Hansard I have when Sydney’s Lord Mayor was a State MP – she’s asking the Parliament questions. It’s headed: “Protecting Apartment Residents from Impacts of Short-Term Accommodation”. For some reason I can’t now find it on the NSW Parliament’s website – strange or what?
On 01 OCT 15, after a request from the City of Sydney, the NSW Land and Envirionment Court placed Orders on our residential property banning short-term letting – the Orders include a lovely Penal Notice threatening imprissonment, sequestration of property and a fine ($1.1 million) if the Orders are breached.
And then on 09 NOV 15 the City of Sydney makes recommendations to the NSW State Parliament that short-term letting of residential properties should be classed ‘Exempt Development’, meaning, short-term let to your heart’s content anywhere, anytime, anyhow – you don’t need permission from Council plus if your neighbours complain, there’s nothing ‘illegal’ about the activity so nowhere to take your complaint.
With all this, the City of Sydney’s Submission to Parliament doesn’t make sense – to me it’s an absolute backflip.
There are reports from San Francisco that Airbnb paid out US$8 million in donations in its efforts to defeat legislation aimed at reining in its activities. Wondering if this sort of activate has gone on here, under the name of ‘political donations’, with a view to changing our Legislation which has repeatedly worked and worked and worked. One hears that Victoria would give anything to have our Legislation!
And I guess if the State Parliament accept the City of Sydney’s recommendations, our Court Orders and our 10-months of peace and quiet gets thrown to the winds?
I reckon Planning and Zoning Laws are only as good as the enforcement of those behind them. If the zoning laws aren’t enforced, what’s the good of having any legislation? It comes down to trust in Legislators to enforce the laws. And if they won’t enforce the Law, the Legislators might as well not be there.
Dolphi.dolphin
Moi, To date, 32 serious threats of litigation – the latest two being some 2-3 months ago…solicitor letters from short-term letting operator/EC Chairman plus Treasure…plus anonymous telephone calls.
There is no such thing in strata as unconscionable behaviour or fraud on the minority.
Add to this, there is a dislocation between the Fair Trading (under Minister Dominello) and the NCAT (under the Attorney General).
In NSW, top staff in Fair Trading can be fully aware of a situation in Strata but when it goes to the NCAT it’s then under the Attorney General. One is given the advice to consult Legal help…and the cost is?
It’d be nice to have a hot shower before work (that was well over a year ago) and in fact to have permission to renovate the room where the hot showers are expected to be available (that also was requested a year ago).
It also appears that within some Strata Schemes one can, without impunity, marginalise lot owners by simply not responding to any correspondence and dismissing any/every motion as ‘out of order’, claiming ‘privileged legal advice’.
Perhaps one could take the matter up with one’s local State MP. But when those who rule the strata are themselves former State MPs with a reputation of ‘abhorrent’ behaviour, life is never ever dull.
Strata – it’s always an interesting ride. Hang in there. And just know that often those opposing you are beside themselves but only reveal this when you’re absolutely calm in the face of all this!
Good luck. And, zen
Word around town is that the recommendations to Parliament are due any tick of the clock.
I’m scared.
And Members of the NSW Parliament want to adopt what they’re calling the ‘Melbourne Model’ for short-term letting ie, three complaints and the ‘offender’ is no longer allowed to short-term let in a residential building.
The question was asked: who sets the benchmark for ‘proof’ and how is it applied and enforced? No response provided. A wee problem could soon get a whole lot worse.
Having sent a 1,200-page documented submission to the CTTT, followed by a second submission, again with lengthy documentation, to the NCAT, wboth submissions were dismissed as unsubstantiated.
What hope has one got?
Might I also suggest you check the Determination of Development Consent on your building. Ours has a Section 88B and when I obtained a copy (very small cost, online, super fast) our Section 88B clearly sets out who can sublet car spaces and to whom i.e., those owners with car spaces attached to their Lots can provide parking for their visitors or they can sublet the space/s but only to residents of the building.
Any breaches of the Section 88B – ie the commercial letting of car spaces to outsides – would, one imagine, see a claim against the building’s Insurance Policy rendered void were a major incident happen involving a non-compliant letting of the car space: someone being hit and injured by an unauthorised vehicle while on common property or such a vehicle bursting into flames, as did a vehicle a couple of weeks ago parked immediately outside my place of work.
(Our Strata fails again. Our EC/SMA refuse to simply write to Owners confirming who they may rent their spaces to, plus they refuse to audit the handing out of remote control/access devices and monitor the vehicles/scooters etc entering our property daily.)
This should all be pretty straight forward though.
JimmyT
Your suggestion is spot on. We have more and more sex workers setting up shop and this would cover their activities as well those sneaky little individual Airbnbs which are creeping in:
The New South Wales was case law also suggested section 49(3) should not be read literally and does permit some scope to regulate leasing. However, it does suggest that transactions be prohibited on the basis of some reasonable criteria, as opposed to being prohibited outright. For example, an outright ban on short-term letting might be invalid, while a by-law prohibiting a transaction lacking requisite development consent or requiring compliance with behaviour/amenity standards might not.
Our development approval is crystal clear on what is permitted. All other types of letting obviously fall outside the the requirements of the DA. (Only problem is: those who control our building are the old short-term letting cohort and they block everything put to them.)
In New South Wales someone has challenged through the NCAT a special by-law restricting the short-term letting of apartments. The extract from the NCAT’s website can be found below.
A Submission was lodged with the NSW Parliament by the former Chair of the Owners Corporation Network to amend Section 49 of the Strata Schemes Management Act (SSMA) so that 75% of owners could introduce a by-law blocking or permitting short-term letting. Details can be found on the NSW Government’s website link:
Should the Government accept this recommendation, the opposing residents could see their residential building converted overnight into a quasi-hotel, should they not have the numbers to block the investor owners wanting to short-term let. After all, more money can be made from tourists than tenants, and if you’re an investor living elsewhere, who gives a fig about the residents in-house and the destruction of their home lives and the peaceful enjoyment of their Lots?
Another submission has been lodged with Parliament – it cannot be seen on the Government’s website as the papers are deemed confidential. The Submission has also been given to senior advisors within the Department of Fair Trading, requesting that the Act be amended to allow Owners Corporations to introduce a by-law with the stipulation that the by-law be in keeping with the residential status contained in the development consent on said building. When asked for a reason as to why a by-law would be required, the response given was: The NCAT will not act to stop short-term letting plus no tenant taking a lease on an apartment ever gets to see the terms and conditions of a Council issued Development Consent on a building. And, a copy of all by-laws should, under the terms of the SSMA, be given to all tenants within seven days of any lease being issued so no tenant will be left with the argument that they didn’t know they couldn’t short-term sublet.
At Local Government (Council) Level, it seems that Councils across the State have taken the liberty of establishing a moratorium on the issue of short-term letting – many Council representatives have admitted this to State Parliament – and are not taking any action against breaches of Planning/Development Consents. NSW Land and Environment Court Decisions, or lack there of, confirm as much.
Shoalhaven Council estimates that in many areas between 70-80% of its residential housing is short-term holiday lettings of some sort, and Byron Council hasn’t provided stats on their holiday housing, despite being asked frequently to do so.
Depending on whether you love or detest short-term letting, readers will have their preferences for how they want their Parliamentarians and Legislators to respond to the requests for changes to the legislation covering by-laws and the ‘use of Lots’.
I’m not a lawyer – any ‘legal eagles’ might care to volunteer their interpretations on this issue?
Here’s the NCAT ‘case study’. Hoping this helps. Also hoping it doesn’t depress you beyond words:
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.
M S
You have just raised one extremely important point:
“As for Council, that’s a little trickier – at least two of the Councillors have rental properties in town that they lease to Health”.
I would imagine this is what one would refer to as a classic case of “Conflict of Interest” involving members of Local Government. Are the Members of Local Government involved in an “Illegal Use of Premises”? (It would depend on the development consent on their properties I imagine.)
Gather documentation. Very public individuals can be backed into very public corners and ‘positions of power’ can end up being their Achilles Heel. It’s a brave soul who takes them on; be warned.
As mentioned, there is currently a Parliamentary Inquiry under way. One imagines that recommendations will be made to Parliament after the Inquiry wraps up. As Parliamentarieans travel into/out of Sydney frequently, do any of them own rental properties in Sydney which they let (or have let) short-term when they are back in their electorates?
When politicians vote at Local, State or Federal Level (eg, all the pollies who own properties in Canberra…are they short-term let?), where can one expect politicians to be acting in the interests of Society, rather than in their personal financial interests? But then, isn’t that what everyone’s talking about these days?
I can’t emphasise enough – I’ve lived the nightmare: The NSW Land and Environment Court has repeatedly judged that ‘mixed use’ – short-term letting with permanent residential occupancy – is “fundamentally incompatible”.
As I said before: Good luck!
Dear M S
I am not a legal professional so, for what it’s worth, I offer the following:
- Check exactly what the Development Consent on your property says. Ours, for example says that the building is for permanent residential occupation only and not for the purposes of a hotel, motel, tourist accommodation or the like…all units must be owner occupied or occupied by a tenant under a residential tenancy lease. Any other type of occupancy is therefore contrary to the Development Approval and contrary to Law. (There goes all the Insurance over your building – how much is it, owners’ contents worth, and what is the going rate for loss of life and permanent injury?)
- A lease held by say NSW Health which sees ‘visitors’ (their staff) staying for one/two nights, would not, I believe, fall into the category of a lease. Firstly the Local Council would argue that there has to be a sense of permanency attributed to the occupancy and stays of a couple/few nights is not permanent occupancy – these individuals have their homes elsewhere. These are ‘visitor’ stays. NSW Health has the option of placing their staff into hotel accommodation or, if the length of stay falls under an enterprise agreement which says that kitchen facilities must be provided, NSW Health should source ‘serviced apartments’ for their staff members. One suspects this kind of ‘use’ of your residential property is a cheap option for this Government body however, if it is in contravention of the Development Approval, if it is NSW Health, they should be looking into how they are sourcing legal accommodation for their staff. Write to Jilliam Skinner, Health Minister: https://www.nsw.gov.au/ministercontactform/minister-health
- See the NSW Residential Tenancies Act, specifically sections 7 and 8(h) of the RTA. These are not leases. Here you can quote NCAT Orders: RT 15/37925 eNumber: 33769HJ18, and RT37922 eNumber: 33769HB18. For about $100 you can take the Owner (listing NSW Health as the tenant) to the NCAT. Phone the NSW Department of Fair Trading to confirm exactly which form you require. If you submit the wrong form, the application will be rejected after all your work.
- Yes, it is the owner of the apartments, not NSW Health, that holds ultimate responsibility for how the apartments are occupied and whether or not the (probable) non-compliance with any Law renders the building insurance policy void. Should the unspeakable ever happen – that’s why Insurance is compulsory, as it sometime does – how much could you sue/get out of this owner?
- Some Councils have altered their Local Envirionment Plan (LEP) so that they now give short-term letting a ‘free kick’. Those who spring to mind include Gosford, Kiama, Shoalhaven. You need to go back to Council, who holds ultimate responsibility for the Development Approvals they have granted.
- The Council should, if there is a clear breach of the Development Approval, take the matter to the NSW Land and Envirionmet Court (LEC). I understand that the maximum penalty is $1 million plus $11,000 for every night that any subsequent breach of an LEC Order is breached. If they claim they need proof, supply as much proof as you have and then tell the Council that they have the power to subpoena the rental and other records of NSW Health – see the conflict of interest between Local and State Government here?!
- The Land and Environment Court has no trouble finding short-term letting a breach of a Development Approval. You can quote to your Local Council the following case numbers: a) (2011) NSWLEC 1054, b) No. 10576 of 2006, c) NSWLEC 315 or 2005, c) NSWLEC 40515 of 2009, d) NSWLEC 40516 or 2009, e) NSWLEC 235 of 2011, f) NSWLEC 61 of 2013, g) NSWLEC 14/40923.
- What you describe, in terms of the behaviour of short-term tenants, mirrors that of anyone I know who has lived in this sort of environment. The NSW LEC has repeatedly judged that there is a “fundamental incompatibility” when one mixes short-term lets with permanent residential occupation. Plenty of quotes from NSW case law can be provided, should you need them.
- It took more than three and a half years of constant lobbying to get ours into Court, then the Court Ordered the Respondent to pay all Council’s costs so there was effectively no cost to Council/Rate Payers. If your Local Council won’t act, tell them you will go to the NSW Minister for Local Government and the NSW Ombudsman. Oh, expect if you are in a large scheme with lots of people complaining that Council will insist that one person to act as the spokesperson and expect that you will eventually be labeled vexatious and have a Council order issued against you at the end of the day…with Council officially stating that they will not respond to any of your correspondence. My experience: That’s how our democracy works. Freedom of Speech…an individual can be officially silenced under legislation available to any Government body.
There is currently a parliamentary inquiry into the adequacy of legislation covering short-term letting in NSW. Every indication is that the short-term letting industry and its participants are lobbying long and very, very, very hard to have short-term letting permitted in every residential building across the state. Some Local Councils have been seen to be actively talking with some high players in the short-term letting industry to work out how to change Local Environment Plans in NSW to suit the commercialisation of residential properties and short-term letting across NSW.
I recommend that you write to your State Member of Parliament expressing your views on this subject and how it is impacting on your home life.
Good luck!
Hi JG
Quoting the NCAT: “Those occupying premises under short term tourist or visitor accommodation agreements (such as Airbnb etc) the Residential Tenancies Act 2010 (RTA) does not apply: see, particularly, Section 7 and section 8(h) of the RTA.”
Hope this helps
Jimmy T’s suggested by-law above is the best I’ve seen – of particular note and persuasion is/are Point 4, c), d) and e).
There is the real concern that any/every such by-law could (currently) very well be challenged in the NCAT and deemed inappropriate under section 49 (1) of the NSW Strata Schemes Management Act (SSMA), which says:
STRATA SCHEMES MANAGEMENT ACT 1996 – SECT 49
Restrictions on by-laws
49 Restrictions on by-laws
(1) By-law cannot prevent dealing relating to lot 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.
At the recent Parliamentary Hearing in Sydney into legislation covering short-term letting, a recommendation by a senior strata lawyer was put to MPs that section 49(1) be amended so that Owners could take a vote at a General Meeting and, with 75% voting in favour of a by-law on short-term letting, the Owners Corporation would have control over how their Lots are to be used. However, the way this was proposed, it would also mean that 75% of Owners could vote to allow short-term letting, contrary to the Development Consent granted on the building – your strata could be turned into a quasi-hotel overnight if enough Owners wanted this.
Since then there has been another proposal put to the Parliamentary Members and senior staff at Fair Trading (by a ‘common person’ – not a strata lawyer) suggesting that Section 49(1) of the SSMA be amended so that Owners Corporations be allowed to pass such a by-law, however it was stressed that any such by-law must be in line with the original Development Consent/Approval granted on the Strata.
Time will tell which way the NSW Parliament ‘jumps’ on this issue.
I fear profoundly that the building in which I live could, overnight, be advertised globally again as a “cheap/budget 3-star hotel/motel/serviced apartments/backpackers lodge”. A return to chaos would be guaranteed.
A report by the NSW Parliament into legislation covering short-term letting is now due around July, so the word goes.
Jimmy T
Absolutely no criticism meant nor am I trying to berate anyone. I have a personal interest in pmo’s original post and was hoping someone else might have had experience of this and if in turn anyone knows of Section 71 of the Civil and Administrative Tribunal Act ever being applied or enforced? I was hoping to keep to topic current and in sight in the hope that someone has some news on this matter.
In the past I’ve mentioned to all sorts of people that there is legislation aplenty, certainly in NSW, but I personally have failed on just about every occasion to activate any of it. I have had the NCAT issue Orders on one thing only, after being refused for more than 12 months just to make application to the Tribunal, and when I was finally given the OK to apply for Orders, it took three Submissions to finally get the Orders. The NCAT adjudicator even questioned why I was applying, saying that the legislation is absolutely clear. With someone now putting me on notice that he’s going to sue me, having those Orders is pretty critical to what will be my defence, should the mattr proceed.
The NCAT is suppose to be there for people who haven’t got bucket loads of money to spend on legal fees but on all occasions I’ve felt humiliated by the Tribunal’s responses to my applications.
I have asked myself often if I am totally, completely, absolutely, shockingly incompetent or, if not, what exaclty is goin on out there with our legislators and tribunals.
Please, the last thing I want to appear is critical of the flat chat forum.
Hello pmo
I have been watching your question drop down the forum list without reply and today it has ‘dropped right off’. In my opinion, in the dealings I’ve had with the CTTT/NCAT a solicitor/EC member has knowingly made false and misleading statements and in a subsequent Submission, under instructions from the respondents, another solicitor has basically done the same thing but most probably not knowingly in the latter case.
You might be interested in a document which has been submitted to a Parliamentary Hearing Committee in which the following question was asked on page 59 of a 62 page document:
“…have made false and misleading statements to the NCAT, discrediting the Applicant. Under Section 71 of the Civil and Administrative Tribunal Act 2013 this is not permitted. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. And under Section 73 of the same Act, this is classified as Contempt of Tribunal. Can the Members of the Parliamentary Hearing Committee give one example of where these Sections of the Civil and Administrative Tribunal Act have been successfully implemented…or has there never been an example of a SMA providing false and misleading statements?”
A link for the document is here.
I wonder if someone can now help with a response?