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Can a by-law be created for the OC to penalise (be it financially and/or an order for eviction) of a tenant who offers a room or the entire premises for short term letting without the approval of the landlord?
I ask because a couple of years ago my tenants without my knowledge let alone consent rented out a room (when they lived there) and later the whole apartment (when they went on vacation) via AB&B. They refused to comply with my requests to cease and desist. They laughed at my concern that the insurance I had would be voided if short term letting was taking place. My insurer confirmed that in writing. They laughed harder when I told them that AB&B when I contacted them informed me that company policy is to “stand by the hosts”. AB&B and the tenants had no come back when I said “the hosts have no right to offer to you my premises”.
Long story short: I managed to stop the short term letting only by going to NCAT and pointing out that doing so was a breach of the Residential Tenancy Agreement (from memory the key was no sub lets for periods under 90 days). Meanwhile for weeks I was uninsured by virtue of the tenants’ contempt for the Agreement they themselves signed. While I won, the effort in time, money and frustration was a major burden. The tenants no doubt were aware that the worst they could expect was to be told by NCAT to cease and desist. No penalties were ordered. In fact, while I was pleased with NCAT’s decision, I pity their new landlord as they now know there is little downside to ignoring their obligations.
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Can a by-law be created for the OC to penalise (be it financially and/or an order for eviction) of a tenant who offers a room or the entire premises for short term letting without the approval of the landlord?
No. Section 139 of the Act says:
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.
The owners corporation has no dog in this fight, unless there are by-laws in place that prevent short-term lets by anyone.
FYI: This section was used for many years to block by-laws that prevented owners from listing on Airbnb, until the Appeals Court in WA and the Law Lords in the UK ruled that since planning laws forbade short-term lets in apartment blocks, there was no right to run Airbnbs for the by-laws to inerfere with. That’s why the NSW government changed the laws.
When it comes to Tenants sub-letting, the standard residential tenancy agreement allows the tenant to sublet part of the property with the written permission of the landlord which can’t be unreasonably refused.
However, the landlord can refuse the transfer or subletting of the entire property.
By the way, since, under the new laws you can’t have by-laws restricting short-term rental of part of a property while the owner or tenant is in residence, there is nothing to stop a tenant from letting a room on Airbnb or its ilk. Sub-letting the whole unit is another matter entirely.
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.
If the culprits are ignoring the terms of your tenancy agreement, do you think they will be more inclined to obey any by law?
Your issue is really a landlord tenant issue , and whilst many people object to AB&B in apartments, you’re literally dragging a non interested party into solving your problem.
Apart from vigilance on your part, there is no solution to the problem you describe as the culprits are gone well before the legal system can react.
How about including a clause in your tenancy agreement that for any subletting they split the profits with you . At least you have a means to hold back their bond in lieieu of the split of profit.
If the couple are living on the premises and they decide to rent a room to 1 or 2 other people, thereby breaching the agreed limit of 2 persons (as per the RTA), then my refusal to consent to this is not “unreasonable”. True?
This should be contractual – as in the tenants should abide by the terms of the contract – but I am loath to predict how the tribunal would view it.
For instance, section 137 of the Act effectively (although in a roundabout way) sets the “reasonable” occupancy limit of apartments at two adults per bedroom.
But then if the tenants have signed a rental contract that set the limit at two adults, aren’t the they being unreasonable in challenging it.
I think the compromise, given the lingering effects of covid and the resurgence of short-term letting, would be to say that you were prepared to accept another couple for a higher rental.
But,as Kaindub reiterated, this has nothing to do with by-laws, unless there is overcrowding.
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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