… do I conclude correctly that whether the strata’s by-laws ignore mention of short term rentals of any type or mention short term rentals by placing limitations or prohibitions on such rentals, the Act allows such landlords (a) to engage in short term rentals when and how they see fit and (b) without the need to inform or seek approval from the strata committee or Owners’ Corporation before doing so?
That is actually two questions. If your by-laws don’t prohibit short-term letting then they are allowed. The only restriction would be the number of nights (180) in Greater Sydney or Byron Shire.
If the by-laws allow holiday lets, subject to conditions, then that by-law might be invalid as it could be interpreted as attempting to restrict or limit the lease of the property, under section 139 (2) of the Act which you quoted.
I say “might” because all of this legislation hasn’t really been tested yet. The new regulations only came into force last month, there have been fewer foreign tourists and a lot of short-term holiday let properties have been absorbed back into the residential rental market.
FYI, I have only recently had confirmation regarding the second part of 137A, dealing with “hosted” accommodation where the lot owners or head tenant claims it is their principal place of residence, that this means they have to actually be there while their guests are staying.
That is nowhere in the Act but it is on Planning NSW’s fact sheets. To summarise, the whole holiday let scene is evolving now that there are regulations, and until some hard and fast rules are laid down, people will interpret the laws, rightly or wrongly, in ways that suit them best.
Also, bear in mind that since you first asked about this, new regulations have come into force in NSW and they include a compulsory register of holiday lets which goes above and beyond strata by-laws.
There is a Planning NSW factsheet that covers all of this and this extract from its FAQs is worth reading:
If you plan to use any part of your property as short term rental, you must now:
• register it on the NSW STRA Register
• make sure it meets the fire safety standards
• make sure you abide by the new Code of Conduct
• take note of any restrictions on the number of days it can be rented each year, and make
sure you do not allow it to be rented out for more days that are allowed.
There are penalties for not complying with the new rules.
So that may be your starting point. Is the apartment registered as a holiday let and if not, why not?