› Flat Chat Strata Forum › Airbnb and holiday lets › Anti-Airbnb by-laws binned › Current Page
The problem is in the use of the term ‘invalid’. A by-law that is invalid effectively does not exist. It could be invalid because proper process was not followed – the vote was counted incorrectly, or proper notice of meeting was not given, or something similar.
The only other basis on which Fair Trading could declare the by-law ‘invalid’ would be if there was a reason that it could not be considered in a matter before the tribunal. The tribunal would then be entitled to act as if the by-law did not exist. This can happen if the by-law addresses something that is outside the authority of the Owners Corporation – a by-law that pretends to restrict owners from parking their vehicles in the street, for instance.
So the question in this case really is “Can the Owners Corporation pass, and attempt to enforce, a by-law that requires compliance with laws or regulation of another authority”? and I doubt that the answer to that would be anything other then Yes.
Is it necessary? Perhaps not, considering that compliance with those other rules is required in any case. But that doesn’t make it invalid.
I can’t think of any other reason (other than the technical invalidity, mentioned above) that would entitle the tribunal to ignore a by-law.
Perhaps there is a feeling that the tribunal could not issue an order or impose a penalty if an application was successful. The only basis for that presumption seems to be that the enforcement of the actual regulation lies with another authority – the local Council. But there are many places in law where enforcement action can be undertaken by more than one agency, so that seems an unlikely basis for their position.
It may be quite proper to suggest that the problem of short term letting is best addressed by direct appeal to the local Council by individual owners. If that is so, then a by-law that empowers the Owners Corporation to do the same thing on behalf of all owners must be perfectly valid.
But if the process was proper and the action lies within the authority of the Owners Corporation then the by-law is valid. Whether or not it is enforceable in practice is a different story, and that can usually only be determined by testing it in the legal system.