It is interesting, that following the posting of the six opinions, for which those who gave them are to be congratulated for being prepared to do so, and of which only one went along with the Fair Trading published opinion that all by-laws restricting letting are invalid, that now a spokesman for the Minister for Innovation and Better Regulation has in effect rubbished the five that did not agree with the Fair Trading line.
To this non-lawyer the reference in the Amanda Farmer opinion to the WA Court of Appeal decision in the Byrne case was instructive in relevant case law. The 50 page PDF of that decision is at Benchmark with the link on the June 16 edition to a PDF of the decision on the page 2 in the “Summaries With Link (Five Minute Read)” section 2 under Byrne v The Owners of Ceresa River Apartments Strata Plan 55597.
It made interesting reading. It seems to this non-lawyer that whether or not a residential building has adopted Model By-law 18 is irrelevant and, basis this WA decision a NSW by-law would be adequate to stop short-tern Airbnb lets in a residential strata building if just worded say as – A lot owner and any occupier to whom the owner grants occupancy rights may only use the lot as a settled or usual abode and not otherwise.
To make it clear all the NSW Government would need do would be to add a provision – to the effect that notwithstanding section 139 (2) a by-law can provide that lots may be only be leased as an occupiers usual residence.
It seems the matter of whether an owner has local government approval to short-term let or not is irrelevant and a by-law restricting a letting other than as a persons usual abode or residence would be OK under the general Section 136 by-law making power to make by-laws in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme.
It seems it was held a by-law that is not actually a prohibition on leasing or other dealing with a lot, in terms of section 139 (2) that provides a by-law cannot operate or prohibit the leasing of a lot, is OK if it just restricts the leasing of a lot to use as a usual residence but does not to prohibit or make a leasing conditional on the approval of the Owners Corporation.