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I have read various opinions on whether holiday & short-term rentals are legal or illegal. Without taking sides, I would like a difinitive answer.
It appears that the majority of fellow users on this forum believe that holiday & short-term rentals can be prevented by passing of a by-law that specifically bans holiday & short-term rentals. However, I am convinced that this is incorrect as I've got legal advice to the contrary as follows:
“A by-law that prohibits or restricts leasing in a manner that is permitted under the applicable planning law (LEP) contravenes Section 49 of the Strata Schemes Management Act 1996.
As long as the zoning of the building does not expressly forbid holiday & short-term rentals, and the renters abide by the usual strata by-laws regarding the noise, etc… the owners engaged in holiday rentals are not breaking the law. Passing a by-law to that effect could be challenged as contravening Section 49 and is therefore a useless and potentially costly tool.
Even if the zoning of the building was to change by council’s amendments to LEP and the by-law was incompliance with the amended LEP, the Environmental Planning and Assessment Act 1979, which overrides (LEP), gives rights for existing use to continue despite the amendment.”
Would anyone offer an alternative interpretation?
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Ok Teys so what is the solution for an OC??
It would be very easy to establish the exact negative impact on the remainder of the building.
Why do the rest of the owners have to be burdened by this??
What is the negative impact on the value of adjacent units?? Can owners take legal action against those owners doing the short term letting for the loss in their apartment value??
How does the OC recover the additional maintenance costs due to the impact on common property, higher than normal water consumption etc etc etc.
Residential apartment buildings are not Hotels and typically owners in residential strata buildings are not prepared to pay what would be the outgoings on such a building.
How about being the answer rather than creating a bigger problem??
There is no definitive answer because the answer depends on the council zoning for your building. If holiday letting is legal in the zoning for your building there is not much you can do to stop it. However if the zoning prohibits or requires consent for holiday lettings then you can do something about the problem by passing an appropriately worded bylaw and enforcing the bylaw. Other options include complaining to the council who might do something or going to the Land and Environment Court to enforce the zoning. Several years ago Surherland Council took some owners to the Land and Environment Court and got orders to stop them from using their unit for holiday letting.
I have to agree with Get It Right. Much as I hate the way corporatised short -term lets have destroyed some residential buildings, the problem is with the law, not with the lawyers. Sensible strata laws and councils who gave a tuppeny damn about strata residents would sort this problem out overnight. In fact, 80 percent of these issues would be fixed by proper zoning of apartment blocks … and there would still be room for short-term lets. The big problem is is the holiday rental agencies that want all the facilities and security of residential buildings but do nothing to protect the amenity that enhances the value and desirability of their properties.
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.
Yes, it’s understood that the council’s lep, dcp or even the particular development consent for the building may actually be the mechanism to limit short term/holiday letting.
I believe Get It Right may not have experienced holiday rentals in any of the beach suburbs and or when it has gone seriously wrong.. Imagine coming home from a hard day at work to find your foyer, stairs or lift coated in beach sand, be kept up all night with partying groups, wake up to go to work and the foyer has been redecorated with vomit, beer/wine bottles, general rubbish left at the front door including those prawn heads… And what can the OC/Strata Manager do about this? Very little because the “tenants” change each couple of days or at most couple of weeks. Sure you can write to the “tenants”, owner and council, but to what effect?
It would be good to do the comparison of with/without holiday letting in a building… I know of two very similar buildings where there is holiday letting occurring in one and not in the other… There is a noticeable difference in the maintenance costs for the cleaning of CP, call outs for the lifts, repairs to the common areas and much more… And who picks up this tab?? All owners in the building are paying for this one owners privilege…Is this how it should work?
Council zoning sets out if the apartments can be leased short term or as residential tenancies.. Sydney City Council is now very clear on this.. Serviced apartments – NO RESIDENTIAL LEASES OR OWNER OCCUPIERS.. RESIDENTIAL- No Serviced apartments or stays less than 3 months on residential tenancies..
Google Sydney City Council Vs The Oaks Group
L&E court Orders shut down Oaks running serviced apartments in two Sydney City office buildings..
This is now getting enforced.. Also getting enforced as they move towards kicking owner occupiers out of serviced apartments..
unfortunately it is the satelite style serviced apartment operations who cause more trouble and are harder to police in comparison to large and reputable operators..
realtor said:
This is now getting enforced.. Also getting enforced as they move towards kicking owner occupiers out of serviced apartments..
Just to reinforce that point, a huge tower block in the city was never meant to be residential – it was always zoned as short-term lets. Now new management has moved in and is apparently kicking long-term residents out (one might assume, at least in part, to boost their letting business) with council backing. We can't have it both ways.
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.
Though I have never been affected myself, I have seen what some of these short term rentals have done to friends of mine. They have a number of people next door to them as well as an entire block of apartments (all owned by the one person) with a continuous turn over of residents behind them.
Complaints about their behaviour have lead to a barrage of beer bottles and obscene language over the fence. Confronting their immediate neighbour lead to their car being parked in. What do they do? They can (and have) make complaints, but by the time anything is done, these short term residents will probably be heading off in their VW combi which they will leave at the airport whilst going to destinations unknown (with no forwarding address). Then the next lot will move in.
My friends feel trapped. Their lives a misery. They are afraid of further more serious retribution. They would like to sell up and move but can't afford it. Besides, who would want to live in these conditions?
Yes, I don't think they were office buildings. There were two Land and Environment Court judgments in cases between Oaks and Sydney City on March 1 last year. In one, Oaks had an appeal against a planning application to change one of its buildings from residential to short-term lets refused. In the other, they were allowed a trial period of two years for mixed residential/sort-term rental use in the city, despite City of Sydney objections. Click on those links to read the judgments in full.
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.
Hi All,
You may also wish to look at the case of Whitlam v Hannah in relation to this particular matter… This was an extremely good court decision that supports owners being able to act where an owner is doing the wrong thing.
I have been a Chair person of two buildings over the last 10 years and watched the Serviced aapartments grow by stealth in Docklands controlled by govt without any rights to appeal any issues yet alone this one.As the numbers grow so does the security reports of breaches increase especially over weekends. Its not just the issue that some have absolutely no control over their apartment guests but that all owners foot the bill for their profit. They are running a very lucrative business as everyone's expense . Cleaning trolleys and guests with suitcases take over the building on Mondays and Fridays.How is it that Hotels are expected to build to different complaince regulations than code residential but no one can give a difinative number as to when a building actually becomes a Hotel? This is a chaep way of doing business and in our building the developer runs their own Serviced apartment business under the banner of Mercure. Will it take a major disaster for the Govt to get it right and change the planning laws and stop this stupidity?
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