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@Jane said:
This is an excellent discussion but could one or more of the legal teams please express their view on whether a short term let via a platform like AirBnB is just a license to occupy and does not create any legal or equitable interest in the property? Is it possible that short term letting is neither a lease nor a type of ‘other dealing’ and falls outside the scope of s 139 (2)?That is a really interesting question Jane. The answer to whether something is a lease or a licence is not in legislation but in the common law. It depends on whether someone has been granted ‘exclusive possession’ of the property: Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209 . Exclusive possession is the right to exclude everyone, including the owner (as tenants can – their landlord can only come into the premises with their permission or in accordance with a provision in the lease).
Typically, if you just let a room in your apartment on Airbnb, that would not be exclusive possession and as a result it would be a licence, not a lease. But if you let the entire apartment, it is most likely granting exclusive possession and is thus a lease. That is what Justice Croft found in Swan v Uecker [2016] VSC 313 But it always depends on the agreement in question.
This creates a strange loophole. The strata legislation has never banned by-laws that prohibit or restrict licencing, probably because no one ever thought of it. It probably never occurred to anyone that an OC would try to prevent people from giving others (like family members) permission to stay in their apartment. But it does create a peculiar loophole in the law. There is no provision that prohibits OCs from writing by-laws banning licencing. However, I don’t think this provides any great assistance because a) most Airbnb arrangements are probably leases and b) even though the SSMA does not ban by-laws that prohibit licencing, I think that if a court were asked to consider the question, it would say that the ability to give others permission to be on your property is an ordinary part of owning property and cannot be infringed by an OC.
I agree with Jimmy and would add that schemes that want to restrict pets to garden apartments are barking up the wrong tree, if you’ll excuse the pun. I think the best way to think about this issue is to remember the laws that apply to all housing. They are that how someone else keeps a pet is no concern of others, unless the manner in which they are keeping a pet amounts to animal cruelty. If so, the appropriate course is to notify the police or the RSPCA. People who live in freestanding houses routinely keep dogs, even though they may only have a tiny courtyard. Some neighbours might think this is ‘cruel’, but they do not have a say in the matter, unless the dog is disturbing them. (Of course, if the dog is walked twice a day, it will be better cared for than a dog in a large yard who is rarely walked).
Apartments should be no different. The only thing neighbours should be concerning themselves with is, ‘is the animal disturbing people?’ If yes, the owner should be fined, the animal trained or removed. I would suggest that strata schemes would probably have more success dealing with problem animals if they all restricted themselves to this question, instead of getting tangled up with by-laws based on pet weight,(crazy when Labradors are irrefutably quieter than fox terriers), or attempting to predict whether an unknown animal will be disturbing (pass the crystal ball). I would add how much open space an apartment has to that list. Someone locking a fox terrier outside in a small garden all day is going to cause the scheme a lot more problems than someone who lets their Labrador or greyhound sleep inside all day on the sofa. At the end of the day, the well-being of the neighours’ animals is not everyone else’s concern. Their only concern is whether they are being disturbed.
And since someone mentioned the ACT, I have to give a shout-out to my favourite strata section in the country – s32 of the Unit Titles (Management) Act 2011 (ACT), which defines ‘animal’ to include ‘mammal (other than human being)’. Just in case any OC was seriously going to entertain the question of whether a resident could keep a human as a pet…….
There is no case law specifically on point that I can find Jimmy but I think the answer is that an owner does not have to seek written permission from the OC if nets are for the safety of children. Lot owners can just install them, (if there are by-laws like model by-law 5). Should an OC seek an order to have them removed, they may be on shaky ground. They could only do so if the nets are not in keeping with the appearance of the building, were not competently installed, were a fire or safety risk.
There is case law holding that an OC which refused to consent to the installation of roller shutters to keep out heat and light was behaving unreasonably by claiming it was not in keeping with the building:
Owners Corporation SP30403 v Landale, Christine [1999] NSWSSB 17 (2 March
1999)Roller shutters are more solid than nets and heat and light are less of a problem than a child falling from a balcony, so I would suggest that arguing nets can never be in keeping with the facade of a building is untenable. If roller shutters can be, nets can be too.
In relation to people's initial comments about parents not being forced to live in properties that are dangerous to children, it can equally be said that other owners are not forced to live in properties where they share common property with others. If you live in strata, you accept that you cannot have your own way about everything, including the look of the facade of the building. If we are balancing up a “right” to have certain visual aesthetic and a “right” to protect your child's life, my instinct is that the former should be compromised, not the latter. The existence of an exception in model by-law 5 for children's safety suggests that the legislature clearly intended children's safety to override the general provision that changes to common property have to be approved. Sounds pretty rational to me.
A second issue that I should have addressed above: under the model by-laws that apply to thousands of schemes, there is an exception to the general rule that people cannot screw or nail things on to common property without OC written permission – they can screw or nail “any structure or device to prevent harm to children.” It cannot compromise fire safety and it must be “in keeping with the appearance” of the building.
However, presumably “in keeping with the appearance” of the building means that you can't install bright pink screens on a dark brick building. It cannot be blanket ban on installing any screens. People are entitled to install screens for keeping out animals and insects so screens or nets per se cannot be a problem.
The upshot is that arguably, people do not need their OC's permission to install a screen or net for the safety of children, if the model by-laws apply.
As the OC is potentially liable for children falling from common property, the rest of the building should be grateful that individual lot owers are reducing their risk of liability by installing safety devices for kids.
Children falling from balconies and windows is a serious problem in Sydney and as windows and balconies are invariably common property, it is potentially the responsibility of owners corporations, ie every owner, to address the risk.
The Children's Hospital at Westmead produced a report by the Working Party for the Prevention of Children Falling from Residential Buildings, 2011 https://www.chw.edu.au/parents/…..ing_falls/. The report includes statistics that show that Westmead alone treats two children a month who have fallen from a window or balcony. Many of those kids fall from apartment windows or balconies and given the fact that only 10% of children in Sydney live in apartments, it demonstrates a real, not fanciful, risk. Children who fall from house windows or balconies are likely to fall on grass or gardenbed; children who fall from apartments land on concrete.
It is by no means certain that an owners corporation would be held liable for a child falling from a common property window or balcony, but it is possible. Owners corporations can be liable for injury sustained on common property in accordance with occupiers' liabilty. If the risk is foreseeable and easily avoidable and steps were not taken to remove the risk, an “occupier” (which is the OC for common property), will be liable. The monetary cost of a child falling from a window on to concrete is not one many OCs would like to face.
There are a number of ways of ways to remove the risk. Nets are one. Easily installed locks on windows to ensure that if opened, windows can be secured to an opening of less than 10 cm are another. Removing climbable balustrades is another. Flysceens are not. Ordinary flysceens can never support the weight of a toddler or even baby.
Ultimately OCs can fix the problem whatever way they decide best or they can take the chance that having failed to address an obvious risk, they may be liable.