Definition of a ‘Short Term Lease’ in a by-law

@proudsceptic said:
The position that: any use of premises as short term accommodation is materially different to a use as a single dwellinghouse because it is not a use of the premises as “the long term home” of persons comprising a household, has not been supported in case law.   

Interesting. In a letter to our friend Catherine Lezer (a director of OCN and a candidate in the recent City of Sydney elections) Fair Trading Commissioner Rod Stowe said this of short-stay lets: 

The Act … provides a number of provisions which may be of assistance to strata schemes facing problems regarding short-term letting.

For example, model by-law 17 in Schedule 3 requires an occupier of a lot to notify the owners corporation of any change to the use of their lot for short-term or holiday letting.

The notice would have to be given in writing at least 21 days before the change occurs or a lease or sub-lease commences. Such a by-law would provide an owners corporation with enough notice of short-term letting so arrangements could be made on matters such as safety and security.

If the Fair Trading Commissioner says short-term letting is a change of use, and so do the model by-laws, that’s certainly something you can take to NCAT although there’s no guarantee that the Member will understand or care.

Proudsceptic says:  “One of the reasons why this issue is tricky is that there is case law which indicates that short term rentals do not necessarily trigger a ‘material change of use’. Therefore Councils cannot ban them in every instance.”

(Proudsceptic, did I see in an earlier post that you are a Queensland resident?) Would it be possible to have the reference to the case law mentioned please – is it NSW case law?  In the case of Dobrhotoff v Bennic, the Judge in that matter said, among many things:  “Inherent within the term “domicile” is, as a long line of authority in this jurisdiction has established, the notion of a permanent home or, at the very least, a significant degree of permanence of habitation or occupation…Tenancies of no more than a week are antithetical to this concept.”

NSW Land and Environment Court Judges have been very clear in their Judgements to date on the issue of short-term letting of residential housing. For other examples of NSW case law which state that short-term letting is “fundamentally incompatible” with permanent residential occupation go to the Neighbours Not Strangers website.

I believe the argument that by-laws (inferior in law to the Determination of Development Consent on a property) could/should be used to decide whether or not short-term letting is permissible in a residental property is critically dangerous territory.  We are talking about the homes and home lives of residents.  Why should owners, having purchased into a residential property, find that at a General Meeting the next week a gang of other owners vote to turn their home into a cheap, quasi-backpackers’ establishment?  This proposition goes against every fundamental element of good, social Planning and protection for the rights of Residents.

Individuals absolutely have the right to short-term let property; they should purchase/invest in serviced apartments, hotels, motels, other such establishments.

Residential Housing is for the housing of Residents.

I think the question of the degree of use is critical in all this, especially since we are all looking round for a “silver bullet” one-fix-fits-all solution – and the proposed ‘complying development’ suggestion is certainly not that. In fact, I don’t believe the silver bullet can ever exist.

However, the law is about to change, one way or another and new set of case law will have to be established to reflect that. In NSW we know that the Land and Environment Court says that residential lets and holiday lets are different (and, I think, set the minimum period for the former at three months).  We know City of Sydney defines residential lets, for the purposes of its zoning, at three months, and other councils do so too.

But what about other forms of temporary accommodation?  For instance, house swaps, pet-sitting, family timeshares and, yes, airbnb lets where the owner is away for a month or two on holiday or business but doesn’t intend to run their home as a commercial holiday let after they return?

Our legislators seem to lack the level of sophisticated thought that would allow them to accommodate all the nuances of allowing your home to be used by non-residents, either for money, for free or for a quid pro quo.

So they have been nudged towards the most libertarian option of allowing anybody who wants to let their homes under any circumstances to do so for a period of time before anyone comes knocking to see what they are up to.

They have also decided that the difference in impact on apartments and free-standing houses is negligible, presumably on the grounds that nobody knows what you are doing in your house and nobody cares what you are doing with your apartment.

We know different.

The issue of invoking the terms of Model By-law 17 is just part of a layered response to short-stay letting that is, for want of a better word, harassment of people who refuse to acknowledge that the majority of owners and residents in a building, collectively have rights that over-ride individuals’ desire to make money.  This was outlined in my story in the SMH this weekend. If you haven’t already, read the story then look at some of the comments.

Now consider this.  Under the new and previous strata laws, you can’t smoke in your house if it affects your neighbours.  You can’t have noisy parties at any time of day or night.  You can’t park on common property without written permision.  You can’t park your second car in visitor parking.  You can’t paint the outside of your front door or your balcony rail a different colour without written permission. You have to abide by the opening times of the swimming pool if you have one. You can’t leave your garbage in your hallway until you are ready to dump it. You can’t take over the loft space right above your unit, just becasue no one else can use it.

And here’s the clincher, 75 percent of your neighbours can decide that it suits them to sell your (and their) units to developers, regardless of the age or condition of the building, and there’s NOTHING you can do about it.

So the whole principle of the inviolability of property rights in strata no longer exists in NSW.  The government has quite deliberately blown it out of the water – possibly for good reason, possibly not.  But they just haven’t come fully to accept that community needs should over-ride individual greed.

Maybe somebody, somewhere will take this to the High Court and successfully argue the case that Section 139 (2) – “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” – cannot exist at the same time as Section 10 of the Strata Schemes Development Act which allows a majority of owners to ‘extinguish” a strata scheme. 

Until then we have to scrabble around bolting bits of by-laws that may or may not be valid to management practices that may or may not be legal to keep holiday lets out of buildings where they are not wanted.

The reassuring thing is that none of these disruptive tactics can occur without the approval of the majority of owners in a building.  Nothing disrupts the disruptors like democracy.