braveheart

Jimmy T – Thank you, I appreciate your response.

Yes, I do understand that an agent has a license to act on behalf of the owner in terms of authorising a lease. However, my understanding is that each individual application by a tenant (VIC and NSW) requires the written consent of the landlord, in which case the rental agent cannot give consent to an animal without the consent of the owner (on a case-by-case basis). Otherwise, why the need for written consent from the landlord at all? What if an owner has told the rental agent that their property as not suitable for pets? In principle, an owner still has a right to withhold consent. And an Owner’s Corporation likewise still has a right to decline an application for an animal if they believe there are reasonable grounds to do so. Whether they are challenged is another matter.

And, yes it all depends on the specific by-laws in place at the scheme in question.

Regarding your second point, yes of course they could write to the EC directly, and that would be a welcome and polite thing to do, as would having the courtesy to check with the landlord first. Providing information about your intended pet in your application is an opportunity to show that you have a reasonable attitude to your new neighbors and you intend to be a responsible pet owner.

However, my post was aimed at the highly annoying situation of tenants who don’t even bother to ask before they move in with their animal, or who sign a lease and then just acquire the animal shortly after, hoping to just brazen it out when objections arise. A tenant is in breach of their lease if they keep an animal without the written consent of the landlord and without prior notification and/or written permission of the OC (depending on the actual by-law in place).

Even if Option A is in place, an occupier would still have to notify the OC in writing and this must be done within 14 days of housing the animal in the lot. Many people won’t bother and won’t care when the OC comes knocking.

Option B says the occupier may keep an animal with the written approval of the OC, although with the caveat that an OC ‘must not unreasonably withhold its approval’. (The pre-1996 Schedule 2 by-law isn’t that much different in this respect). In both cases, written approval still needs to be sought and obtained. And ccording to Option A, there is a time limit of 14 days.

I am specifically focusing on situations where an occupant fails to act reasonably by ignoring these basic requirements and continues to ignore them after being notified. In that case, the occupant is not adhering to the terms of their lease with respect to by-laws. Is it unreasonable of an OC to withhold approval for any retrospective applications in such circumstances?

As to your final point (and yes, that should read ‘cynical’ – spell check gremlin), it’s usually not difficult to work out who is trying it on and who is genuinely bewildered. By the same token, prospective tenants can always read the notice board in the lobby when they inspect. Before they sign a lease they can read the rental agreement – the by-laws should be included by the agent. Or they could just be upfront and say ‘We’re planning to get a dog/cat – ‘is the landlord OK with pets? Is there anything we need to do first’?

Hi Newbie,

We had a ‘problem’ tenancy just as you describe operating in our block for several years. A corporate organisation arranged to lease a residential apartment and were referred to as ‘the tenant’ but no individual actually resided their full time – just a passing parade of casual groups staying for periods ranging from a couple of nights to several weeks, usually arriving and departing very late at night or early mornings. Noise and rubbish were often a problem. The unit owner was uncooperative and the letting agent insisted that all was above board and legal. The secretary communicated our concern that this arrangement was in breach of the zoning, and also contravened as a special by-law we had in place to prohibit short term letting. The letting agent was rude and dismissive and the strata manager basically passed the buck. The other committee members sadly had no stomach for an NCAT challenge (which seemed the only recourse available) and the situation was left unresolved.

After 3 years the corporate lease was terminated and a regular tenancy is now in place. Since the matter was never properly tested it remains unclear as to what the legal standing is regarding this type of arrangement. Given the current manufactured ‘confusion’ regarding short term letting – where people seem to be putting about fake news that ‘it’s all legal now anyway’ – I suspect this type of irregular letting will proliferate until a clear legal precedent is set. I take some hope from the recent post by Jimmy T regarding higher court judgements but there always seems to be a louder argument from the other side.

I realise my post does not really provide you with a plan to defeat the problem, except to say that the registering of a by-law prohibiting a lease under 3 months (or even 6 months) has certainly helped us in regard to other instances of short term letting in our block. However, it is this corporate work-around tactic that seems to be the grey zone. Who knows how things might pan out now if a number of residents decide to flout the by-law given the current manufactured ‘confusion’?

Regards,
Braveheart

Happy New Year and thanks for the opportunity to comment.

Yes, I agree with proudsceptic and Jimmy that the mechanism exists already to register a special by-law to prevent short-term letting. In our block we have had such a by-law in place for a number of years. It has so far protected the right of the majority to enjoy their homes undisturbed by commercial activities that are not in keeping with our residential zoning. However, recent attempts by the NSW state government to advocate change by force on behalf of the greedy can be met with equal determination within the current laws.

There is a simple, democratic solution to this problem that is covered by the existing strata legislation. As noted, owners who want short-term letting in a block can propose a Motion to call a General Meeting where all residents can vote to adopt a by-law that permits short-term letting. However, I would suggest, however, that a yes vote in this instance ought to require 100% agreement. If the vote is yes, the Strata Plan can then be registered as short-term compatible and advertised as such in any future sale or lease. Prospective purchasers and renters will know up-front which buildings permit short-term rentals and which ones do not. The 100% agreement protects owners who bought into a block according to its residential zoning. The requirement for a 100% vote will quickly show just how much demand there really is for holiday lettings in a strata building. Those who want to enforce significant social changes of this nature ought to be required to prove there is agreement for change by unanimous vote. Either the whole block permits it or the block remains free of it. Buildings that do not allow it will attract buyers who don’t want to live with short-term rental disruption. And vice-versa. State government infringements (i.e. not the wet lettuce Fair Trading ‘penalties’) should apply to transgressors.

A win-win scenario, no ifs, buts, or maybes, and an end to all the confusion and emotive BS around the issue.

As previously noted, an owner in our building has installed an A/C unit on the balcony and drilled a hole in the exterior wall of the balcony to facilitate wiring etc to the interior part of the A/C attached to the inside wall of the Lot. Our Strata Manager informs us that because our Strata Plan was registered prior to July 1974, the exterior wall of any balcony’s is considered to be part of the Lot. 

Does a unit owner in a Strata Plan registered prior to July 1974 have an unrestricted right to drill a hole 100 mm in diameter in the exterior brick wall of the balcony if that balcony wall is deemed to be part of the lot (i.e. NOT common property)?

Is yes, would the owner still be obligated to ask the permission (and to submit all relevant documents and a written proposal) of the OC to carry out such works prior to commencement?

Does the OC have any grounds to object after the work has been carried out without discussion or consent?

Thanks,

braveheart

Many thanks Whale, kiwipaul, and Jimmy T for your considered and prompt advice. I have done as you suggest and passed all of your excellent advice on to our Secretary who will inform our Strata Manager. With regard to Whale’s query about a possible SBL enabling consent by the EC to such works, no, there is no SBL as you describe in place. (Although I’m just now wondering what implications, if any, Section 65A of the SSMA 1996 might have?).

https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma1996242/s65a.html

We’ll see how the cookie crumbles as due process unfolds.

It all goes to show what complications and time-consuming trouble can be avoided if people just read their by-laws and abide by them. If in doubt, ask eh? How hard can that be? 

Much obliged,

braveheart

Unbelievably, a neighbour (who is actually on the EC) has just yesterday affixed a new split system A/C unit on the (common property) balcony of his unit. No permission sought from EC and no prior notification of intention, not even a notice that noisy work was to be undertaken. This unauthorised addition to common property also involved the drilling of hole in the external wall approx 100 mm in diameter. From the postings here it would seem that this owner has opened himself and the rest of us to a host of potential legal and financial problems down the line. Am I correct in assuming that by acting in this way he has ceded responsibility for his new toy to the OC and that the EC can simply arrange its removal so that the common property can be restored to its original condition? 

Hi Stumped,

Yes, from our experience it seems council and LEP is the way to go. We have had an ongoing problem in our strata block for several years with an owner who runs an online short term holiday letting business. Our block is on Sydney’s Lower North Shore and is exclusively zoned residential. We also have a special by-law in place prohibiting any rental for periods of less than six months. This owner repeatedly flouted this and other by-laws. Recently he recruited the owners of another unit who ‘let’ their unit through his agency over the Christmas holidays to a series of overseas holidaymakers. The EC were basically lied to and told that ‘guests’ would be occupying the unit while the owners were away. Our strata manager was reluctant to act, even obstructive, because he feared “legal action” from the perpetrators. The end result is our EC secretary contacted our local council for clarification. They obliged us with a letter to all residents warning of the consequences of breaches against zoning regulations under LEP laws. This seems to have produced the desired effect in the selfish parasites who indulged in this practice. Nevertheless we remain ever vigilant.

Cheers