- This topic has 9 replies, 7 voices, and was last updated 1 year, 7 months ago by .
-
Topic
-
I have been the Secretary of a small block on the NSW mid-North Coast for the last eight years. Three of the units are tenanted. In the past on a couple of occasions I have had to chase up a unit owners rental agent for the tenants name etc. for recording on the strata roll and it has been provided.However with a recently let unit and, an agent with whom I have had no previous dealings, after the two weeks allowed for the tenancy details to be provided had passed, on requesting the rental agent to provide the tenancy info required by section 258 to be provided by the owner/landlord I was informed by the rental agent that the privacy legislation prevented it from giving the Owners Corporation any information except the name of the rental agency and a confirmation that the unit had been leased.I queried it as to why the lease would not have had an annexure worded to the effect that the lessee authorised the rental agent to provide the details of the lease being its commencement date, full name of the lessee, and contact information for the sending of notices such as email and phone. The reply was – we do NOT do that.
I checked the NSW privacy act and found nothing there except that anything in it did not override any provision in another NSW Act that permit disclosure and in any case it seemed to me it was just about disclosure by Government and its agencies. I found the Commonwealth Act too long to easily read through and follow.It seemed to me that Act did not apply to an individual’s ability to disclose info if an unincorporated landlord or unit owner but maybe it applied to an organisation such as a real estate agency doing property rentals and that a $3 million turnover was also a factor. I will now have to chase the owner who no doubt will have to get the required by the act info from the agent.Fortunately as far as I know it is unlikely the owner is marooned by Covid-19 at an unknown address somewhere overseas. The silly part about it is that the Standard Lease, which does have a clause stating the strata schemes’s by-laws are to be provided to the lessee BEFORE the lease is signed, could easily have a clause in it allowing the owner/landlord’s agent to supply the information required of an owner/landlord by section 258.
-
Replies
-
The rental agent needs to hire a better lawyer.
The Privacy Act doesn’t apply to corporations with a turnover of less than $3 million.
Even if it did, it doesn’t apply in cases where another law requires the information to be provided (such as the Strata Schemes Management Act).
Some large strata management firms have cited the first rule to avoid handing over information such as owners’ email addresses, claiming that THEY have turnovers of more than $3 million, therefore the Privacy laws apply.
But the second part blows that out of the water and they eventually have to provide the info, albeit very reluctantly.
Section 258 is absolutely clear on this. The landlord (or their agent) must provide the name of the tenants and any sub-tenants on the lease, as well as an address for service of mail.
Privacy laws are simply not relevant and you are entitled to wonder why they are invoking them.
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.
You can also point out to the agent that the owner can be fined up to $550 for not providing the tenants details. That may spur them on.
And in relatin to privacy laws, they are there to prevent the dissemination of personal details to parties without any interest in the person. Since an OC has an interest ( ie there is a lawful relationship between the OC and the tenant), then the OC has a right to that information. The act just reinforces this.
This was really helpful for me too!
A unit in our strata obviously sub-leases a bedroom, but only the main tenants are on the rental agreement.
https://legislation.nsw.gov.au/view/html/inforce/current/act-2015-050#sec.258 was pretty clear that both the lessees and sub-lessees details need to be disclosed for the Strata Roll.
It’s about time they had a basic skills and knowledge test for rental agents – they tend to be the lowest of the low in real estate.
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.
Re sub-leasing/renting out a spare bedroom. I would suggest the sub-leasing mentioned in the legislation is intended as whole of apartment, and not just renters within the apartment (assuming the leasee is there also). These flatmates will come and go, and I assume won’t think it’s anyone else’s business to know such information while the leasee is there and contactable.
I would suggest the sub-leasing mentioned in the legislation is intended as whole of apartment, and not just renters within the apartment (assuming the leasee is there also).
This is what section 258 of the Act says:
258 Tenancy notice to be given to owners corporation of leases or subleases(1) If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the lease.
Maximum penalty—5 penalty units.(2) If a lot is subleased, the sub-lessor must give notice of the sublease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the sublease.
Maximum penalty—5 penalty units.(3) If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation not later than 14 days after the execution of the assignment.
Maximum penalty—5 penalty units.(4) The notice must be in writing and specify—
(a) the name of the tenant and an address for service of the tenant, and
(b) the date of commencement or assignment of the lease or sublease, as the case requires, and
(c) the name of any agent acting for the owner in respect of the lease or sublease.
I’m not sure exactly what that means but I reckon if someone has signed a residential tenancy agreement, even if it’s only for one room, then they are a sub-lessee.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.
Would sub-letting one room in a property for “sharing” be more likely to come under the definition of boarding or lodging, which is exempt from most RTA requirements?
Would sub-letting one room in a property for “sharing” be more likely to come under the definition of boarding or lodging, which is exempt from most RTA requirements?
The definitions are a bit fuzzy but for the purposes of this discussion, I would say if your name is on a lease agreement – even as a sub-tenant – then it should be on the strata roll too.
There are definitions of boarders and lodgers in this factsheet which are quite helpful although none of it directly addresses strata schemes.
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.
On the issue of subleasing, I had an apartment where the tenants decided every now and then to holiday abroad and sublease the premises via Air B&B, without telling me or telling the OC.
I had no idea it was sublet.
That said, even if I was aware, I would not bother with the details of the sub-lessee because the lease imposes obligations on the tenant (or “head tenant” as some call them). A short term sub-lessee would leave long before wheels were in motion to alert him to a breach of by law or common decency.
The head lessee’s contact details were always with the OC.
The most effective solution IMHO is to make clear to the “head tenant” that in the event of leasing the premises in whole or in part for a period that falls within the duration of the “head tenant’s” lease, that the “head tenant” will be responsible for the conduct (and consequences) of her guests, sub tenants etc.
Our OC was happy with that solution, if for no other reason than sub lessees are often short stayers and providing their contact details to the OC or strata agent is superfluous when (a) ALL correspondence was sent electronically to the “head tenant” who could if she wished, forward such information to its sub lessee; and (b) chasing sub tenants up for damage etc after they have scooted away is also a fruitless endeavour. Both the landlord and OC can hold the “head lessee” accountable for the omissions and commissions of its subtenants.
- You must be logged in to reply to this topic.