By-Laws limiting the number of residents.

I once went to a seminar run by Comsumer Affairs Victoria (who administer the OC  and Tenancy Acts) and someone asked a similar question.

Their answer was no.

There might be other Acts and laws that come into play here.

Bear – I’m not surprised by Fair Trading’s reported response as they’re typically uninformed with regard to such matters, but I am surprised by Sydney City Council’s reported response, because they’ve been outspoken on such matters and typically their consents for the construction of multi-unit complexes include conditions stating that the building provide may only be used as a residential complex and not accommodate “more than two or three adult persons per bedroom”.

In any case, there’s no “superior law” of relevance that I’m aware of in NSW, although I’m sure that NSW Fire & Rescue quoted similar occupation rates as being desirable for the bedrooms of apartment buildings after a disastrous fire in an overcrowded building in Liverpool.

So your Owners Corporation (O/C) can legitimately make a Special By-Law to prevent “hot-bedding” (which is what you’re doing) based on the floor space and the numbers of bedrooms, furthermore members of the Executive Committee are entitled to inspect your Unit to check compliance, and as you’ll read in Austman’s post new NSW Strata Laws will further substantiate your O/C’s decision.

Anyway, you’ve got your response – and although I’m sure it’s not the one that you wanted, aren’t a couple of additional people enough to supplement your income?

@bearforce1 said:
I suppose what I would like to see is a some sort of formulaic method to based on health and safety determine the restrictions on number of people residing. This would remove any subjective quibbling and provide people with an objective reasoning they can understand and hopefully be happy with.

It was advised by the planners at Sydney Council have decided to leave out number or residents because each building is different, floor ratios etc. It will be interesting to see how different OCs decide to limit residents and on what basis.

It’s one of those perennial problems (becoming almost daily now though!).  Most Council consent conditions issued these days provide for an occupancy limit of, say, 2 adults per bedroom.  We consider that a by-law that provides that occupancy is limited in that way falls within the provisions of section 43 of the Act and does not fall foul of section 43(4) (a by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law) or section 49(1) (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).

What it does is regulate occupancy but does not prohibit or restrict leasing – any more than any other by-law restricts leasing by, for example, prohibiting the keeping of animals (can’t lease to someone who wants to bring their pet with them).  

Beverley Hoskinson-Green

Partner  |  Makinson d’Apice Lawyers