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In our small block, there are two units that are leased to NSW Health. They are used by visiting medical staff, usually for a day or two, sometimes for a couple of weeks.
The residents themselves are usually pretty quiet (a blessing in strata land). Our main problems are – (1) the units have garages but the Health cars are usually left in visitor spaces, or on the lawns or occasionally blocking other residents (2) stinking garbage bins left on common property in the expectation that other residents will put them out for collection. And rubbish dumped in green waste and recycling bins.
There are many forum posts about Airbnb. But it seems there are other organisations like NSW Health who are doing the same thing, causing issues for other residents in the block. The local Health office says they are not responsible.
Is there any difference between Airbnb and NSW Health in this instance? Does the unit owner have some responsibility as well? (NB I don’t know if the accommodation is provided free by Health or if a rent is charged.) Thanks.
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Who is the owner of the units? Have you been in touch with the owner about the issues? The owner does have a responsibility to ensure tenants abide by unit bylaws etc. Suggest you start by reminding lessor, visitors and owner of bylaws (presuming your bylaws have provisions regarding parking in proper areas and proper disposal of rubbish) and suggesting that if issues continue you’ll be serving notice of breaches, which can result in fines.
It seems that we aren’t talking about short-term lets here, but short-term visitors in a long term lease. In which case the lessor (NSW Health) is responsible for the behavior of its visitors.
It does concern me that people who seem to have a role in society assisting people with their health (medical staff) can’t differentiate between bin types, or grasp the principles of rubbish disposal. Not the sort of people you want giving medical advice…..
Dear M S
I am not a legal professional so, for what it’s worth, I offer the following:
- Check exactly what the Development Consent on your property says. Ours, for example says that the building is for permanent residential occupation only and not for the purposes of a hotel, motel, tourist accommodation or the like…all units must be owner occupied or occupied by a tenant under a residential tenancy lease. Any other type of occupancy is therefore contrary to the Development Approval and contrary to Law. (There goes all the Insurance over your building – how much is it, owners’ contents worth, and what is the going rate for loss of life and permanent injury?)
- A lease held by say NSW Health which sees ‘visitors’ (their staff) staying for one/two nights, would not, I believe, fall into the category of a lease. Firstly the Local Council would argue that there has to be a sense of permanency attributed to the occupancy and stays of a couple/few nights is not permanent occupancy – these individuals have their homes elsewhere. These are ‘visitor’ stays. NSW Health has the option of placing their staff into hotel accommodation or, if the length of stay falls under an enterprise agreement which says that kitchen facilities must be provided, NSW Health should source ‘serviced apartments’ for their staff members. One suspects this kind of ‘use’ of your residential property is a cheap option for this Government body however, if it is in contravention of the Development Approval, if it is NSW Health, they should be looking into how they are sourcing legal accommodation for their staff. Write to Jilliam Skinner, Health Minister: https://www.nsw.gov.au/ministercontactform/minister-health
- See the NSW Residential Tenancies Act, specifically sections 7 and 8(h) of the RTA. These are not leases. Here you can quote NCAT Orders: RT 15/37925 eNumber: 33769HJ18, and RT37922 eNumber: 33769HB18. For about $100 you can take the Owner (listing NSW Health as the tenant) to the NCAT. Phone the NSW Department of Fair Trading to confirm exactly which form you require. If you submit the wrong form, the application will be rejected after all your work.
- Yes, it is the owner of the apartments, not NSW Health, that holds ultimate responsibility for how the apartments are occupied and whether or not the (probable) non-compliance with any Law renders the building insurance policy void. Should the unspeakable ever happen – that’s why Insurance is compulsory, as it sometime does – how much could you sue/get out of this owner?
- Some Councils have altered their Local Envirionment Plan (LEP) so that they now give short-term letting a ‘free kick’. Those who spring to mind include Gosford, Kiama, Shoalhaven. You need to go back to Council, who holds ultimate responsibility for the Development Approvals they have granted.
- The Council should, if there is a clear breach of the Development Approval, take the matter to the NSW Land and Envirionmet Court (LEC). I understand that the maximum penalty is $1 million plus $11,000 for every night that any subsequent breach of an LEC Order is breached. If they claim they need proof, supply as much proof as you have and then tell the Council that they have the power to subpoena the rental and other records of NSW Health – see the conflict of interest between Local and State Government here?!
- The Land and Environment Court has no trouble finding short-term letting a breach of a Development Approval. You can quote to your Local Council the following case numbers: a) (2011) NSWLEC 1054, b) No. 10576 of 2006, c) NSWLEC 315 or 2005, c) NSWLEC 40515 of 2009, d) NSWLEC 40516 or 2009, e) NSWLEC 235 of 2011, f) NSWLEC 61 of 2013, g) NSWLEC 14/40923.
- What you describe, in terms of the behaviour of short-term tenants, mirrors that of anyone I know who has lived in this sort of environment. The NSW LEC has repeatedly judged that there is a “fundamental incompatibility” when one mixes short-term lets with permanent residential occupation. Plenty of quotes from NSW case law can be provided, should you need them.
- It took more than three and a half years of constant lobbying to get ours into Court, then the Court Ordered the Respondent to pay all Council’s costs so there was effectively no cost to Council/Rate Payers. If your Local Council won’t act, tell them you will go to the NSW Minister for Local Government and the NSW Ombudsman. Oh, expect if you are in a large scheme with lots of people complaining that Council will insist that one person to act as the spokesperson and expect that you will eventually be labeled vexatious and have a Council order issued against you at the end of the day…with Council officially stating that they will not respond to any of your correspondence. My experience: That’s how our democracy works. Freedom of Speech…an individual can be officially silenced under legislation available to any Government body.
There is currently a parliamentary inquiry into the adequacy of legislation covering short-term letting in NSW. Every indication is that the short-term letting industry and its participants are lobbying long and very, very, very hard to have short-term letting permitted in every residential building across the state. Some Local Councils have been seen to be actively talking with some high players in the short-term letting industry to work out how to change Local Environment Plans in NSW to suit the commercialisation of residential properties and short-term letting across NSW.
I recommend that you write to your State Member of Parliament expressing your views on this subject and how it is impacting on your home life.
Good luck!
@Tess McGill said:
It does concern me that people who seem to have a role in society assisting people with their health (medical staff) can’t differentiate between bin types, or grasp the principles of rubbish disposal. Not the sort of people you want giving medical advice…..You have identified one of the fundamental reasons short-stay lets should not be allowed in residential buildings. There is zero sense of responsibility among fly-by-night residents to discover the basic rules – written and unwritten – of a building and then abide by them.
I dread what concoction of populist and and trendy, half-baked legislation we will be faced with when NSW parliament finally comes up with a “solution” to the spread of short-stay letting.
In fact, the solution is already there in our council zoning and any legislation that tampers with the status quo will be fixing something that isn’t really broken.
Just support the existing laws and stop pandering to businesses that present themselves as a caring, sharing hug-fest when the reality is that they are a multinational corporation that has made a substantial chunk of its billions by helping greedy investors to break the law and avoid paying tax.
Our politicians are so blinded by popular opinion and what’s trending on social media that they can’t see what’s right in front of them.
They seem to live in this fantasy land where, despite all the evidence to the contrary, everyone who goes out for a drink late at night is a violent thug whereas everyone who sets foot in strata, even for a weekend, is a model citizen who would never dream of upsetting their neighbours.
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.
M S
You have just raised one extremely important point:
“As for Council, that’s a little trickier – at least two of the Councillors have rental properties in town that they lease to Health”.
I would imagine this is what one would refer to as a classic case of “Conflict of Interest” involving members of Local Government. Are the Members of Local Government involved in an “Illegal Use of Premises”? (It would depend on the development consent on their properties I imagine.)
Gather documentation. Very public individuals can be backed into very public corners and ‘positions of power’ can end up being their Achilles Heel. It’s a brave soul who takes them on; be warned.
As mentioned, there is currently a Parliamentary Inquiry under way. One imagines that recommendations will be made to Parliament after the Inquiry wraps up. As Parliamentarieans travel into/out of Sydney frequently, do any of them own rental properties in Sydney which they let (or have let) short-term when they are back in their electorates?
When politicians vote at Local, State or Federal Level (eg, all the pollies who own properties in Canberra…are they short-term let?), where can one expect politicians to be acting in the interests of Society, rather than in their personal financial interests? But then, isn’t that what everyone’s talking about these days?
I can’t emphasise enough – I’ve lived the nightmare: The NSW Land and Environment Court has repeatedly judged that ‘mixed use’ – short-term letting with permanent residential occupancy – is “fundamentally incompatible”.
As I said before: Good luck!
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