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Martyn – I doubt very much that you or your Owners Corporation (O/C) could use the provisions of a Special By-Law of the type discussed to take action against a Tenant / Owner / Agent for merely advertising a vacancy at their premises. In fact in the case of an Owner or their Managing (Rental) Agent advertising, that may be regarded as restricting an Owners’ ability to “deal” with their Lot; something that no By-Law is permitted to do.
As I understand your problem, the best (if not only) approach to preventing the overcrowding of Units within your Plan would be for your O/C to specially resolve to draft and Register a Special By-Law (SBL) of a type outlined in my previous post (#2). Just make sure that its rationale can be fully justified to withstand a challenge, and that’s best achieved by having an experienced Strata Lawyer such as the one who is a sponsor of this site to complete the draft.
In that way, once a Unit is known to be occupied by more adult persons than the SBL permits, and that shouldn’t be too difficult to determine, your Executive Committee or Strata Manager can issue the tenant/s with a Notice to Comply (with the By-Law), and to if necessary follow the NCAT’s procedures for the imposition of a fine should they not comply.
A few other points that may make your O/C’s management of this type of SBL a little easier……
1) The provisions of Sect 119 of the NSW Strata Schemes Management Act (SCMA) requires the Owner or their Managing Agent to provide the O/C with the names of all tenants (i.e. legal occupants) shown on a Tenancy Agreement, so your E/C will be aware of the names of the tenants for inclusion on any Notice to Comply; and,
2) Clause 35 of the Tenancy Agreement requires the Owner or their Managing Agent to provide a copy of all By-Laws and SBLs to the tenants within 7 days of a Rental Agreement commencing, so none of those could claim that they were unaware of a limitation on the maximum numbers of adult occupants permitted to reside at the premises; and,
3) There’s at least one legal precedent that I know of where the Owner of a Lot has been found equally liable for a breach of By-Laws by their tenant, in circumstances where the O/C had provided that Owner with a copy of the Notice to Comply as issued, and they then did nothing about addressing the breach with their tenant. That may encourage Owners to ensure that their tenants do comply with a SBL of the type suggested – and indeed any other.