#28249
Lady Penelope
Strataguru

    The short answer to the short term letting issue  – It lies with strengthening the local council regulations and zoning laws, and the enforcement of the regulations by the council itself. Councils could and/or should employ more people to enforce their own rules. 

    The long answer to JT’s question about what we reckon about the by-law that was recently deemed to be invalid – The by-law was doomed from the get go.

    One of the things that annoys me most about by-laws is that many are superfluous. Too many superfluous by-laws create a scenario where people avoid reading them. They end up being an expensive exercise that only lawyers benefit from.

    If an issue is already covered by another piece of legislation either in the SSMA2015 or another Act then why waste time, energy, and money repeating it in a by-law?

    The “invalid” by-law’s Items 1 and 6 are already covered in the strata Act so why re-state them?

    In Item 2 what does “dwelling” or “domicile” mean? These terms are not defined in the strata Act.  If there is no definition in the Act then the ordinary dictionary meaning should be used.

    A “dwelling” is defined as a structure where people live or sleep. The mere fact that people live or sleep in the structure for 3 months or 3 days does not prevent the structure from being a dwelling. The term “dwelling” in an Act is used to create a distinction between a structure that has bedrooms, kitchens and bathrooms (i.e. can be lived in) rather than a structure that is not used to live (i.e. does not have bedrooms – but it may or may not have a kitchenette and a bathroom). The distinction seems to be in the availability of a place to sleep.

    These structures are dwellings: a house, an apartment.

    These structures are not dwellings: an office, a garage, a shed, a factory.

    The by-law is rather confused as on one hand it states that the strata dwelling must only be a “domicile” (i.e. be a permanent place of abode) but at the same time it permits occupancies that are not permanent i.e. occupancies of greater than 30 days are permitted.

    A “domicile” is generally defined as a permanent home in taxation law. Incidentally, a domicile for tax purposes is usually a residence that is used by the person for longer than 183 days of the year.  This could mean that the dwelling could be tenanted for the remainder of the year and still be classified as a “domicile”.

    Items 3 and 4 refer to “Commercial activity” and “commercial purposes”. Whether an apartment is let for 3 days or 3 months or 3 years does not mean that it is being used for “commercial activity” or “commercial purposes”.

    Renting out an apartment is clearly permitted under strata law.  A tenancy of less than 3 months does not make it any more “commercial” than a tenancy of 3 months and 1 day.  It could be argued that longer tenancies are more “commercial” as the longer the tenancy the greater the rent that is paid.  

    Instead, “commercial purposes” usually means that owners are not permitted to use their apartments as shops or restaurants or openly trade from them to the public e.g. using an apartment as a massage parlour or a hair salon would be “commercial purposes”.

    Even if the owner of the unit was running a commercial enterprise involving the letting out of the unit, the people holidaying in the unit would be putting the unit to a residential rather than a commercial or industrial use. 

    JT said: Strata laws already state that you have to abide by the law and that includes zoning.  My building in Sydney, for instance, has zoning that is very specific about the minimum period for lets (three months).

    If a law already exists to ban letting that is less than 3 months then the issue is not with the law. The issue is with the enforcement of the law. The problem lies with the Sydney council.