Is it legal for the tenants to sublet while whey don’t live in the property.

There are two very interesting areas of the strata Act relating to tenants and sub-tenants (lessees and sub-lessees, as they are referred to) particularly as they are commonly ignored.

The first, Section 119 (below), refers to the the landlords’ duty to inform the owner’s corporation of the identity of their tenants within 14 days of a lease being signed – penalty five units ($550).  The same obligation applies to tenants who sublet to other tenants they have 14 days to inform the owners corp and again the maximum fine is $550.

The other one – and this a slightly longer bow – requires tenants and sub-tenants to be given a copy of the by-laws. Section 46 (also below) requiires the Landlord to provide a copy of the by-laws to the main tenant (or be fined up to $110) and the main tenant to provide by-laws to the sub-tenants (max fine $110).

OK, that’s all well and good but how do you prove these breaches are occurring.

My recommendation would be to pass a by-law allowing all areas of common property to be under video camera surveillance.

You then discreetly position a camera near the doors of the offending apartments and film the comings and goings over a reasonable period of time.  Watching who regularly goes in at night and comes out in the morning would be a reasonable indication of who is living there.  Once you have gathered the evidence, you can start proceedings through the CTTT for breaches of section 119.  As these breaches carry statutory penalties, you can apply straight to the CTTT for the imposition of a penalty without going through mediation at Fair Trading.

If you want to go the whole hog and get them for failure to supply by-laws, you can knock on the door, with a reliable witness and ask to see a copy of the by-laws.  You could tell them you will come back the next day to give them a chance to find them and failure to provide them would be an indication that they were never given them  Even better, if you got them to sign something saying they had never received them, that would be persuasive.

Oh, by the way, a change to the by-laws (like the one for the video cameras) triggers the legal requirement for landlords to issue a new set of by-laws.  Neat, eh?

Now, before you go any further, run this past a strata lawyer to see if it might fly.  If it does, you could drive these bogus tenants out of your lives for good – but in reality, the first sign that they are going to cop fines will have the landlords reaching for their eviction notices on the grounds that the tenants have breached their agreement by breaching by-laws. Sweet!

119 Notice to be given to owners corporation of leases or subleases

(1)  If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation within 14 days after the commencement of the lease.

Maximum penalty: 5 penalty units.

(2)  If a lot is subleased, the sublessor must give notice of the sublease, in accordance with this section, to the owners corporation within 14 days after the commencement of the sublease.

Maximum penalty: 5 penalty units.

(3)  If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation within 14 days after the execution of the assignment.

Maximum penalty: 5 penalty units.

(4)  The notice must specify:

(a)  the name of the lessee, sublessee or assignee, and

(b)  the date of commencement or assignment of the lease or sublease, as the case requires, and

(c)  the name of any agent acting for the owner in respect of the lease or sublease.

 

46   How does a lessee get information about the by-laws?

(1)  If a lot or common property in a freehold strata scheme is leased, the lessor must provide the lessee with a copy of the by-laws, and any strata management statement affecting the lot or common property, within the time and in the manner required by this section.

Maximum penalty: 1 penalty unit.

(2)  If a lot or common property in a leasehold strata scheme is sublet, the sublessor must provide the sublessee with a copy of the by-laws, and any strata management statement affecting the lot or common property, within the time and in the manner required by this section.

Maximum penalty: 1 penalty unit.

(3)  The copy of the by-laws or strata management statement must be provided to the lessee or sublessee within 7 days after the lessee or sublessee becomes entitled to possession of the lot or common property.

 

(4)  The copy of the by-laws or strata management statement (including any further copy of by-laws that have been amended) must be:

(a)  served personally on the lessee or sublessee, or

(b)  if the lease or sublease relates to a lot—served on the lessee or sublessee in any manner allowed by this Act for service of a document on the occupier of a lot, or

(c)  if the lease or sublease relates to a lot or common property that is fully enclosed by walls or other structures—left in a conspicuous position at the lot or on the common property.

 

I have just discovered this (below) on the Tenants Union website.  It suggests quite clearly that the Landlord can refuse permission to sublet if the tenant isn’t going to be living in the property or if the property is going to be overcrowded. It also says the landlord can withhold permission if the=y wish if the tenants are not going to be resident in the sub-let.

That puts the onus right back on the landlord to make sure their tenants are abiding by your by-laws.

So my advice would be to pass a by-law limiting the number of residents per apartment (based on the numebr of rooms).

Pass the by-law allowing video surveiillance of common property.

Gather your evidence and that put the heat on the landlord at the CTTT.

Or, alternatively, explain to the landlord that you are about to get very heavy with them, there could be substantial fines involved, they have the right to end the sub-let and the best thing for everyone is for them to just do it.

Transfer or sub-letting with landlord’s consent

With the landlord’s written consent, you can:

• transfer your tenancy under a tenancy agreement to another person, or
• sub-let the premises (or part) to another person.

The landlord must not unreasonably withhold consent when:

• you ask to transfer and one of the original tenants under the current tenancy agreement will remain as a tenant, or
• you ask to sub-let and you will still occupy the premises.

Landlord may withhold consent

The landlord may reasonably withhold consent if:

• the number of proposed occupants is more than allowed by the tenancy agreement or planning laws
• the landlord reasonably thinks that the premises will become overcrowded.

If the proposed transfer or sub-letting is for the whole tenancy or the whole premises, the landlord can withhold consent – whether or not it is reasonable. (My emphasis – JT)