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Can we pass a bylaw that prohibits subletting in our (small) block?
No you can’t – you can’t pass by-laws that interfere with the sale or rental of units – but there are plenty of other solutions.
It would probably be worth getting an experienced strata lawyer to review your existing by-laws to see which ones would be effective and which ones would stick.
The model by-laws (which you’d need to have been adopted for your specific block) say this:
6 Noise
An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, must not create any noise on a lot or the common property likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.
7 Behaviour of owners, occupiers and invitees
(2) An owner or occupier of a lot must take all reasonable steps to ensure that invitees of the owner or occupier–
(a) do not behave in a manner likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or any person lawfully using common property.
Now, if you have those by-laws already on your books, then you can start issuing Notices to Comply to each of the offending parties: the upstairs tenants, the head tenant (sub-letting landlord) and the owner.
But if you don’t have them, or the wording is different, you may have to fix things, then start issuing NTCs.
According to this post, if your by-laws say that owners (rather than residents) mustn’t make too much noise then a noise by-law wouldn’t apply to the tenants. But the headline on the post is a bit misleading … it’s not that tenants can’t be told to keep the noise down, it’s that the by-laws have to be precise.
Download this pamphlet published by the state government about how to deal with noisy neighbours.
In your position, I’d check the by-laws, issue the Notices to Comply (don’t get sidetracked with nonsense about issuing warnings – NTCs ARE warnings) and hit them with everything you can muster.
I’d offer your tenants a week of free rent to compensate but ask them to call the police whenever the noise goes past 10pm on week nights or midnight at weekends. The police will come, they will issue on-the-spot fines and they will remove stereos or whatever if they’ve told the tenants to stop the noise and they start up again.
The EPA restrictions above are not instead of your block’s noise by-laws, they are as well as, so noise during the day should be hit with Notices To Comply and noise late at night by calls to the police.
And if none of that works, you can hit both the tenants and the head tenant with noise abatement orders at your local court and if they ignore those, they are committing a crime. That’s all in the pamphlet too.
By the way, if the tenants are obstructive or try to delay action at NCAT, you can apply for all legal costs to be paid by them, so there may come a point where you want to “lawyer up”.