#26146
Lady Penelope
Strataguru

    Millie – The case law example where a material change of use was successfully argued based on the facts that the short term rental house was: used for bucks and hens nights and stripper parties; with rental durations of a week or less; and in which the owner did not use this property for their own holidays, is actually the NSW case that you have mentioned: Dobrotoff v Bennic.

    However, a material change of use will not apply to every short term rental. This was made clear by the Judge in Moore v SSCLG and Suffolk Coastal District Council [2012] EWCA Civ 1202 at [19] which was cited by the Judge in D v B at [43] and which stated:

    Whether a building is a “dwelling-house” is a question of fact and degree. Subject to any requirement of permanency, there are a number of situations where buildings may be “dwelling-houses” even though they are only occupied infrequently. A holiday house that is used exclusively for a limited amount of time during the year by a family (or even time shared between several families) or a house owned by a company that is rented out to executives and their families for short durations may all nevertheless constitute “dwelling-houses” (Moore v Secretary of State for Communities and Local Government [2012] EWCA Civ 1202 at [19]).

    The Judge in D v B reiterated the principle that these cases are all a matter of fact and degree. The outcome of D v B may have been different had the facts been different and the degree of usage as a ‘party house’ been much less. 

    It was always common ground that a dwelling house (i.e. a residential home) need not be occupied all the year round – a second home is still a home. A second home rarely used by its owner and sometimes put to commercial use will in many cases not cause a material change of use.

    Along with the degree of usage, the character of the use of the house and the effect of that use on the character of the area remain important indicators of when a material change of use may have occurred.

    To make assumptions that every short term rental will trigger a ‘material change of use’ claim and that every short term rental will result in a poor outcome for the strata scheme is possibly flawed. These assumptions may result in loss of support for your cause from the large numbers of owners who are only infrequently utilising their underused second homes as short term rentals (see the example in Moore). These ‘mum and dad’ owners do not want to have their homes trashed by unsavoury types and would probably be more careful who they let stay in their home.

    The real struggle is against those owners who never stay in their second homes and chose to short term let these apartments 100% of the time to anyone who will pay the price, isn’t it?