› Flat Chat Strata Forum › Living in strata › Strata defence: Get your Airbnb by-laws in now › Current Page
@Decipher said:
CBD3000The reason behind VCAT taking this action, like it has before in these situations, is driven by section 140 of the VIC OC Act 2006 which states that rules are to be of no effect if the rule discriminates (in the broadest sense of the word) against any owner.
Essentially if the Owner wants to short term lease their unit you cannot ban them from doing so just because you or the rest of the OC don’t want them to.
You are right to say that it is Section 140 (see below) that has invalidated rules banning short term lets, but not for the reasons you said.
It is actually 140 (b)(v) – that the rule is “inconsistent with … any other Act.”
In the case of the Watergate ruling last year, the VCAT adjudication said that the building was in a mixed-use commercial/residential zone and that by introducing the rule preventing short-term lets, the owners corp was over-reaching and attempting to act as a planning authority.
If the building had been zoned residential only, a rule would have been able to limit the rental periods to no less than what is accepted as permanent residential in Victoria (which I believe is 30 days).
As CBD3000 says above, “unfairly discriminates” does not mean anyone can do whatever they want in their apartment. It means the Owners Corp can’t create rules that only apply to individuals because of things like their race, religion, gender, sexual orientation, social status, profession or, for instance, whether or not they are renters.
Section 138 clearly allows the owners Corporation to create rules “for the purpose of the control, management, administration, use or enjoyment of the common property or of a lot.”
On another point, it’s a matter of opinion but I take issue with your observation that people who live in desirable properties in city centres do so for the same reasons that people who rent them for holidays, weekend events and parties do.
I live in an apartment block in Kings Cross in Sydney and, while I expect occasional noise from both inside and out of the block, I would have something to say if the flat next door became a weekend “party flat”. Thankfully, our Owners Corp can see the potential problems from short-term lets and has valid by-laws in place, backed by close scrutiny of visitors to enforce them.
140. Rules to be of no effect if inconsistent with law
A rule of an owners corporation is of no effect if it—
(a) unfairly discriminates against a lot owner or an occupier of a lot; or
(b) is inconsistent with or limits a right or avoids an obligation under—
- (i) this Act; or
- (ii) the Subdivision Act 1988; or
- (iii) the regulations under this Act; or
- (iv) the regulations under the Subdivision Act 1988; or
- (v) any other Act or regulation.