› Flat Chat Strata Forum › Airbnb and holiday lets › Definition of a ‘Short Term Lease’ in a by-law › Current Page
I think the question of the degree of use is critical in all this, especially since we are all looking round for a “silver bullet” one-fix-fits-all solution – and the proposed ‘complying development’ suggestion is certainly not that. In fact, I don’t believe the silver bullet can ever exist.
However, the law is about to change, one way or another and new set of case law will have to be established to reflect that. In NSW we know that the Land and Environment Court says that residential lets and holiday lets are different (and, I think, set the minimum period for the former at three months). We know City of Sydney defines residential lets, for the purposes of its zoning, at three months, and other councils do so too.
But what about other forms of temporary accommodation? For instance, house swaps, pet-sitting, family timeshares and, yes, airbnb lets where the owner is away for a month or two on holiday or business but doesn’t intend to run their home as a commercial holiday let after they return?
Our legislators seem to lack the level of sophisticated thought that would allow them to accommodate all the nuances of allowing your home to be used by non-residents, either for money, for free or for a quid pro quo.
So they have been nudged towards the most libertarian option of allowing anybody who wants to let their homes under any circumstances to do so for a period of time before anyone comes knocking to see what they are up to.
They have also decided that the difference in impact on apartments and free-standing houses is negligible, presumably on the grounds that nobody knows what you are doing in your house and nobody cares what you are doing with your apartment.
We know different.
The issue of invoking the terms of Model By-law 17 is just part of a layered response to short-stay letting that is, for want of a better word, harassment of people who refuse to acknowledge that the majority of owners and residents in a building, collectively have rights that over-ride individuals’ desire to make money. This was outlined in my story in the SMH this weekend. If you haven’t already, read the story then look at some of the comments.
Now consider this. Under the new and previous strata laws, you can’t smoke in your house if it affects your neighbours. You can’t have noisy parties at any time of day or night. You can’t park on common property without written permision. You can’t park your second car in visitor parking. You can’t paint the outside of your front door or your balcony rail a different colour without written permission. You have to abide by the opening times of the swimming pool if you have one. You can’t leave your garbage in your hallway until you are ready to dump it. You can’t take over the loft space right above your unit, just becasue no one else can use it.
And here’s the clincher, 75 percent of your neighbours can decide that it suits them to sell your (and their) units to developers, regardless of the age or condition of the building, and there’s NOTHING you can do about it.
So the whole principle of the inviolability of property rights in strata no longer exists in NSW. The government has quite deliberately blown it out of the water – possibly for good reason, possibly not. But they just haven’t come fully to accept that community needs should over-ride individual greed.
Maybe somebody, somewhere will take this to the High Court and successfully argue the case that Section 139 (2) – “No by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing relating to a lot” – cannot exist at the same time as Section 10 of the Strata Schemes Development Act which allows a majority of owners to ‘extinguish” a strata scheme.
Until then we have to scrabble around bolting bits of by-laws that may or may not be valid to management practices that may or may not be legal to keep holiday lets out of buildings where they are not wanted.
The reassuring thing is that none of these disruptive tactics can occur without the approval of the majority of owners in a building. Nothing disrupts the disruptors like democracy.