#26079
Lady Penelope
Strataguru

    If you disagree with a by-law or find that a by-law is unreasonable then you have the option to propose a Motion that amends the by-law and/or clarifies the by-law. If your Motion receives the necessary support at a General Meeting by Special Resolution then the by-law must be changed.

    Below is an extract from the NSW Office of Fair Trading site regarding by-laws:

    Owners corporations can determine the by-laws that suit the preferred lifestyle of the strata scheme. A by-law must not be harsh, unconscionable or oppressive. No by-law is capable of restricting a dealing in a lot, including restricting short-term letting. By-laws cannot restrict children, and cannot restrict the keeping of an assistance animal. (My emphasis added).

    See SSMA 2015 Sections 139(1) and (2) for restrictions on by-laws that may be relevant to your situation.

    If you firmly believe that the OC’s definition of a short term lease is inconsistent with SSMA s139 or any other Section of the SSMA, or Act or law (including local council laws and regulations) then you can use SSMA 2015 Section 136(2) to contest, avoid or negate the effect of the by-law.

    The issue of short term leases is causing immense confusion and has yet to be properly resolved by the relevant authorities. On one side of the argument the NSW Civil and Administrative Tribunal issued an Order that stated an agreement by airbnb does not constitute a residential tenancy lease, and on the other side of the argument the NSW Land and Environment Court issued an Order for the City of Sydney that banned short term tenancies in residential buildings. 

    Getting the definition of “short term accommodation (tourist accommodation)” correct and reasonable will go a long way to resolving all of these issues.

    NB: Some zoning definitions from the Sydney LEP 1996 and from 187 Kent Pty Ltd v Council of the City of Sydney [2007] NSWLEC 88 (2 March 2007) which unfortunately still do not address the definition of long term accommodation and short term accommodation:

    mixed-use development means a building or buildings in which two or more uses are carried out.

    residential accommodation in Central Sydney means a building or part of a building that provides permanent or long-term accommodation, and includes residential flat buildings, dwellings, boarding houses, hostels, student accommodation and the like.

    serviced apartment in Central Sydney is a form of tourist and visitor accommodation and means a building or part of a building that provides self-contained accommodation which is serviced or cleaned by the owner or manager of the apartments or the owners or managers agents.