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Topic
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Our Strata of 8 units has a by law prohibiting short term letting for less than 3 months. However one of the owners
insists on letting his unit for a week or two when he goes away and does not even notify the secretary of his
intention. We have previously sent him a letter of compliance but he ignores it.
What can we do about this ?
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By a “letter of compliance” do you mean a “notice to comply” (NTC) provided on the approved form? If so, the next step is to take them to NCAT for fines after they have breached the NTC. Provided you used the approved form in the first place, you can go straight to an NCAT application – you don’t need to go through mediation in that instance.
Also, you can seek penalties at NCAT for breaches of section 258 (below). This will require mediation first but could result in a maximium fine of $550.
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.
Note : An address for service of notices may be an Australian postal address or other electronic address, including an email address (see section 261).
(5) This section does not apply to the lease of a lot by the lessor of a strata leasehold scheme to a lessee who is the owner of a lot.
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At our recent AGM, such a motion proved fruitless, as has every other single motion submitted over the last six/seven years. ‘Legal advice’ has been used as the excuse not to pass a single motion:
RESOLVED THAT the motion was ruled Out of Order by the Chairperson –
legal advice … which was read to the Meeting –
as follows –
“Motion 23 has been proposed by the owner which seeks to ensure compliance with Section 258 of the Strata Schemes Management Act 2015 (SSMA). Section 258 of the SSMA relates to the provision of tenancy notices to the Owners Corporation in respect of leases or sub-leases of a lot. The purpose of the section was intended to apply to ordinary leases or sub-leases of a Lot where the tenancy would not necessarily be considered to be of a short term or seasonal variety, albeit the section doesn’t actually rule such situations out. It can be considered to have universal operation and could apply to situations where an Owner of a Lot elects to lease out the Lot for a shorter period than would typically be seen (i.e. holiday or short term rental).
The Motion purports to authorise the Owners Corporation undertaking enforcement proceedings if an Owner does not comply with the requirements of Section 258. In our view, that part of the Motion should be ruled out of order as being in conflict with section 103 of the SSMA. Where an Owners Corporation wishes to undertake enforcement action the ordinary manner of approving such action under the SSMA is for a specific resolution to be passed in general meeting. A broad based resolution such as that which is proposed is simply not in accordance with the SSMA.
We also make the comment that the Motion is not supported by an explanatory note as required by clause 4(2)(c) of Schedule 1 of the SSMA.
In our view, the Motion should not be included on the Agenda, however if it is, then it should be ruled out of order by the Chairperson exercising the discretion granted to them under clause 19, Schedule 1 of the SSMA.
Additionally, the Motion serves no real purpose other than to acknowledge the existence of Section 258 of the SSMA, which applies regardless of any motion or bylaw which may be considered and passed”.
A lawyer’s opinion is just that. It is not the law. There is a lot of dubious interpretation in this opinion, not least unsupported claims of what the law intended. The lawyer is clearly working for the pro-STHL group in your building which is another reason it should be taken with a pinch of salt.
The assertion that the law was only intended to refer to “normal” lets is an opinion. NCAT and an NCAT appeal tribunal might disagree. Otherwise it’s just lawyers saying what their paymasters want to be said. If lawyers only ever expressed the fundamentsls of laww there would be no need for courts.
Action at NCAT to compel the OC to issue breach notices for failure to identify tenants would go some way to clearing this up.
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