A Lot owner enters into a standard 12 month lease agreement with the Tennant. No special conditions. The tenant lists one of the rooms in the 3 bed apartment on Airbnb whilst he lives there permanently
The Lot owner doesn’t mind the Airbnb happening. It causes no disturbance to other residents and helps the tenants pay the rent.
The strata manager emails a letter to the tenants (not the owner) telling them to stop hosting on Airbnb based on their by-law 17.
17. The Body Corporate will not approve short term holiday rental of units. For example “Air bnb” or similar type short term holiday exchange rental. Short term is less than six months.
The tenants believe they are within their rights to host their spare room on airbnb based on s.139(2) SSMA 2015 and information from the local council (see below).
The tenants receive a 2nd email from the strata manager with general advice attached on what is happening with future legislation from their Solicitors. The email threatens to take action against the lot owner if the tenants do not cease the Airbnb.
As the lot-owner has a 12 month lease with the tenant and the tenant is a permanent resident in the apartment it is believed that the request to stop listing their spare room on Airbnb is unjust and goes against section s.139(2) SSMA 2015 of Act.
The tenants believe that if this goes to NCAT and the adjudication rules in favour of the strata scheme, the outcome would be a $1500 fine to the owner (which the tenant would pay) and instruction to take down the listing and that is all.
- Is this correct or are there more serious consequences?
- If the issue does progress to NCAT, do you think there is a good chance that NCAT will rule in favour of the Strata Scheme?
- As the tenant lives in the apartment and does not offer breakfast, we believe we may fall under councils section Subdivision 22 Home businesses which would mean we aren’t breaking any council regulations either. Have you heard of this argument being used?
Other information
Building is in the R3 zone ( Bed and breakfasts allowed with CDC)
Tenants have been advised in writing by a compliance officer at local council that
‘If a premises is being used unlawfully for tourist and visitor accommodation, Council has discretion in deciding whether to take enforcement action against any person who it considers to be in breach of the law, based on the available evidence and other circumstances such as the impending changes to NSW planning laws that will allow short term holiday lettings….
Currently Council is not taking action against an owner who is using their premises for short term accommodation unless the use is causing detrimental and direct amenity impacts on other residents.”
Tenants have been verbally advised by council that as they do not provide breakfast, they do not comply with the requirements of a Bed and breakfast which is allowed with consent and advised not to apply.
We [may] fall under the Subdivision 22 Home businesses 2.43 specified development which is exempt of a CDC.