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  • #77621
    SelenaT
    Flatchatter

      Owners in the strata scheme where I have an apartment wish to prevent short stays at specific times of the year, notably the high demands of Christmas, New Year and Easter. I note from your Strata By-Law on short stays that the OC can prevent short stays through a by-law, but is it possible to set specific dates/times in a by-law.

      In short, can we draft a by-law that prevents short term/Airbnb at specific times of the year.

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    • #77626
      Jimmy-T
      Keymaster

        The only information I could find on the Fair Trading website says this:

        Owners corporations can choose to adopt the model by-laws with or without changes. They can also adopt their own unique by-laws, although there are restrictions on the types of by-laws owners corporations can adopt. For example, an owners corporation cannot adopt a by-law that is unjust or otherwise conflicts with strata or planning laws.

        So, for instance, provided the apartment was NOT the owner’s principal place of residence, you probably could limit the periods during which it was available for holiday rentals.  I’m not a lawyer but I would think that might be easiest effected by banning short-term rentals EXCEPT in non-peak periods.

        However, if you have owners who only let their apartments for those peak periods, use the income to pay for an overseas holiday (so they can escape the noise etc), then spend the rest of the year at home, I don’t think there’s much you can do.

        I’d be interested in hearing from people who ARE lawyers about how they think this could work.  The “principal place of residence” free pass is farcical and means owners only have to be at home during the week then let their flats at weekends, or fly to cooler climes in the summer and let their homes while they are gone.

        Principal place of resident means living there 183 nights a year.  Too easy.

        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.
        #77628
        The Hood
        Flatchatter

          In short, can we draft a by-law that prevents short term/Airbnb at specific times of the year.

          Bert asks the same question over on YSP.
          One answer is given so far and it goes:

          Section 137A (2) A by-law has no force or effect to the extent to which it purports to prevent a lot being used for the purposes of a short-term rental accommodation arrangement if the lot is
          the principal place of residence of the person who, pursuant to the arrangement, is
          giving another person the right to occupy the lot.

          That is a NO from the Act as long as the lot is the principal place of residence.
          Note the condition, it must be the principal place of residence.

          If the lot is not the principal place of residence then the door is open to make such a restriction provided the restriction is not harsh, unconscionable or oppressive (s 139).

          #77643
          Jimmy-T
          Keymaster

            …the door is open to make such a restriction provided the restriction is not harsh, unconscionable or oppressive (s 139).

            Pretty much the point I made, myself.  But what is “harsh, unconscionable or oppressive” in this context?

            One suggestion would be to pass the by-law and let the affected parties (the Airbnb opportunists) take the committee to NCAT to establish whether it has legs or not when they are hit with Notices to Comply.

            On reflection, that a ponderous route to get to a simple answer – just exposing another flaw in our much-vaunted strata laws.

            Oh, and don’t bother asking the AG’s office what they think (they run NCAT) – they’ll tell you it’s a strata issue and refer you to Fair Trading, who will say they can’t make a ruling because it’s an NCAT decision and so on and so on.

            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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