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I (a NSW resident) would like to know if strata schemes whose by-laws don’t mention short term rentals, can be construed as an automatic green light for any absentee owner to rent out his/her strata unit on a (very) short term AirBnB-like basis?
The issue arose recently when I heard one tenant has moved interstate for a few months and the absentee landlord owner is “keeping the unit for that tenant” and in the interim is letting the premises on a short term basis.
In reply to a 02/06/2021 posting by me about tenants letting the whole unit when they go on holidays via AirBnB without the knowledge let alone consent of a landlord, Jimmy replied that s.139 of the Act says:
(A) by-law cannot prevent dealing relating to lot
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.So, from the perspective of an absentee landlord wanting to let (and re-let) an entire unit on a short term basis , do I conclude correctly that whether the strata’s by-laws ignore mention of short term rentals of any type or mention short term rentals by placing limitations or prohibitions on such rentals, the Act allows such landlords (a) to engage in short term rentals when and how they see fit and (b) without the need to inform or seek approval from the strata committee or Owners’ Corporation before doing so?
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… do I conclude correctly that whether the strata’s by-laws ignore mention of short term rentals of any type or mention short term rentals by placing limitations or prohibitions on such rentals, the Act allows such landlords (a) to engage in short term rentals when and how they see fit and (b) without the need to inform or seek approval from the strata committee or Owners’ Corporation before doing so?
That is actually two questions. If your by-laws don’t prohibit short-term letting then they are allowed. The only restriction would be the number of nights (180) in Greater Sydney or Byron Shire.
If the by-laws allow holiday lets, subject to conditions, then that by-law might be invalid as it could be interpreted as attempting to restrict or limit the lease of the property, under section 139 (2) of the Act which you quoted.
I say “might” because all of this legislation hasn’t really been tested yet. The new regulations only came into force last month, there have been fewer foreign tourists and a lot of short-term holiday let properties have been absorbed back into the residential rental market.
FYI, I have only recently had confirmation regarding the second part of 137A, dealing with “hosted” accommodation where the lot owners or head tenant claims it is their principal place of residence, that this means they have to actually be there while their guests are staying.
That is nowhere in the Act but it is on Planning NSW’s fact sheets. To summarise, the whole holiday let scene is evolving now that there are regulations, and until some hard and fast rules are laid down, people will interpret the laws, rightly or wrongly, in ways that suit them best.
Also, bear in mind that since you first asked about this, new regulations have come into force in NSW and they include a compulsory register of holiday lets which goes above and beyond strata by-laws.
There is a Planning NSW factsheet that covers all of this and this extract from its FAQs is worth reading:
If you plan to use any part of your property as short term rental, you must now:
• register it on the NSW STRA Register
• make sure it meets the fire safety standards
• make sure you abide by the new Code of Conduct
• take note of any restrictions on the number of days it can be rented each year, and make
sure you do not allow it to be rented out for more days that are allowed.
There are penalties for not complying with the new rules.So that may be your starting point. Is the apartment registered as a holiday let and if not, why not?
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
I have not had a chance to look into your suggestions, I will later today, but meanwhile want to advise that the strata has a by-law on short term/holiday rentals which states that an “occupier” of a lot can engage in short term or holiday letting. There seems no restriction on the “occupier” regarding how many can dwell on the premises or for how long it can be let out.
How about you answer the first response before embarking on another line of inquiry? This is hardly urgent and that would be the polite thing to do.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
But I cannot see where I can simply look up a property (by inputting its address) and check if it is registered. Or must I sign up to a NSW Planning Portal account in order to verify the status of a premises?
You can check on the website where the property is listed for short-term letting (Airbnb, Stayz, etc etc) by looking at the information on their online profile. It should have a registration number like PID-STRA-xxxxx-1.
Having said that, the first two listings I looked at were listed as “Exempt”. How does a property get an exemption? Let’s face it, with Airbnb nothing is ever clear-cut or transparent, but I will try to find out.
Otherwise, if the property doesn’t have a PRD number, or an exemption, it shouldn’t even be listed.
Is the apartment registered as a holiday let and if not, why not? The managing agent did not address this issue. Hence I infer it is not registered.
That’s quite an assumption. Maybe he or she didn’t know.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
It is my understanding that an owner (maybe a property agent but not a tenant) registers a property with Dept of Planning …
Where do you get the idea that tenants can’t do this? The “head tenant” of a property can be an Airbnb host without the owner even knowing in some cases.
Before covid, people were renting multiple properties in tourism hot spots and sub-letting them on holiday let websites.The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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