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pielover

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  • 13/12/2017 at 7:31 pm in reply to: Smoke detectors – beeping every 30 seconds flat battery warning #28866
    pielover

      Surely, speak to your neighbours…

      13/11/2017 at 7:25 pm in reply to: Remove a Strata Committee office bearer from their position #28650
      pielover

        Penelope,

        Very interesting, but I have never seen any SC decisions documented as motions or resolutions, but numerous decisions are made. This may be intentional , perhaps, to avoid the need to provide such documentation to the owners….

        13/11/2017 at 12:16 am in reply to: Remove a Strata Committee office bearer from their position #28640
        pielover

          Penelope,

          Are you saying that ANY/ALL motions & resolutions made by the Strata Committee in their meetings are to be distributed to all the owners ?

          I couldn’t find this described in SSMA 2015. Please confirm…

          thanks

          15/10/2017 at 6:26 pm in reply to: Your chance to speak out on Airbnb #28388
          pielover

            Millie,

            Are you able to include a link to the relevant (set of) documents you referenced ?

            Was it clarified previously whether or not a Residential Tenancy Agreement is only applicable to a lease of 3 months minimum ?

            Given that a by-law needs to be clear, unambiguous and not open to differing interpretations, might such inclusion in a by-law prevent, albeit unintentionally, family or friends staying at the owners apartment (in the owners absence) for a period of anything less than 3 months  ?

            27/09/2017 at 9:00 pm in reply to: 1st NCAT case for AirBnB by-laws under SSMA2015 ? #28259
            pielover

              Jimmy,

              I was simply quoting the response from the council. The ‘ opinion ‘ was from the Council’s representative.

              This was their rather convoluted response when the question of Airbnb short-term letting was put to them.

              27/09/2017 at 7:42 pm in reply to: 1st NCAT case for AirBnB by-laws under SSMA2015 ? #28254
              pielover

                My 2nd reply to Jimmy & Lady Penelope.

                I enquired once with one of the Eastern Suburbs councils about dwelling, domicile, the council’s LEP etc and this was their reply :

                In the town planning sense the question one must ask is: Is the premises being occupied cognate with its approved use a dwelling?

                Ultimately the answer to this question, I think, is determined by how the premises is occupied and not necessarily by whom it is occupied by, and as such the two questions that are fundamental to this determination are:

                1) Is the premises being used as a single household (see Blacktown City Council v Haddad [2012] NSWLEC 224 as to what is meant by the term: ‘single household’) ?

                If the answer to this is “yes” then the next question is:

                2) Does this occupation satisfy the degree of permanency of occupation that attaches to a dwelling or domicile (there are a number of legal cases that discuss this ‘critical’ aspect of dwelling usage which I think are instructive. Some of those cases you may be able to access on the NSW Caselaw website and are cited as follows: Dobrohotoff v Bennic [2013] NSWLEC 61, Blacktown City Council v Haddad [2012] NSWLEC 224, City of Sydney Council v Waldorf Apartments Hotel Sydney Pty Ltd [2008] NSWLEC 97; (2008) 158 LGERA 67, Foster v Sutherland Shire Council [2001] NSWLEC 89; (2001) 115 LGERA 130, KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 218; (2006) 148 LGERA 117 to name a few).

                If the answer to this question too is yes, than, in my opinion, the occupation of the premises is consistent with that of a dwelling.

                27/09/2017 at 7:34 pm in reply to: 1st NCAT case for AirBnB by-laws under SSMA2015 ? #28253
                pielover

                  I queried : 

                  Also, is the by-law worded in such a way that it also prevents family/friends from ever staying there for less than 30days ? ie. both paid or unpaid would be prohibited.

                  Jimmy’s answer : I can’t see where it says or implies that.

                  Jimmy,

                  (4) An owner or occupier of a lot must ensure that the lot is not used for any commercial purpose that involves the lot being used by its occupants on a short-term basis for less than thirty (30) days.

                  May I suggest that the above clause could imply that, as it is ambiguous and pertains to any ‘occupant’. I know of strata lawyers who would readily argue that if any ‘payment’ is received to stay there, even by family members/relatives (ie. non-owners), then the stay/transaction becomes ‘commercial’. Wasn’t this something you raised earlier as a reasonable exception ie. family/friends are OK to stay short-term ?

                  Shouldn’t a by-law be unquestionably unambiguous, clear, concise, self-contained and not open to differing interpretations at the whim of the SC ?

                  27/09/2017 at 6:23 pm in reply to: 1st NCAT case for AirBnB by-laws under SSMA2015 ? #28250
                  pielover

                    Jimmy,

                    So, how did you come to receive a copy of the by-law as it wasn’t included in the tribunal determination/summary ?

                     Also, is the by-law worded in such a way that it also prevents family/friends from ever staying there for less than 30days ? ie. both paid or unpaid would be prohibited.

                    10/07/2017 at 6:13 pm in reply to: Anti-Airbnb by-laws binned #27522
                    pielover

                      What confuses me is….who ‘owns’ and ‘administers’ the SSMA 2015 legislation ? If it is indeed OFT, then they should have the final say about what by-laws can or can’t state.  

                      I am not talking about disputes between parties, but about what the legislation means/doesn’t mean….surely someone knows !

                      Though you do hear it said that different NCAT adjudicators can reach totally different/opposing rulings (which people can then appeal).

                      So, everyone goes round ‘n round in circles…

                      22/06/2017 at 12:04 pm in reply to: Can we create a bylaw banning Airbnb? #27334
                      pielover

                        Sir Humphrey,

                        Maybe I am being too simplistic when it comes to the intricacies of laws & legislation and the fact that lawyers love to play with words, but :

                        On the basis that SSMA 2015 is ‘owned’ and ‘administered’ by Fair Trading then I would have thought that they would/should be the ones to state whether or a not a specific by-law is ‘valid’ or not, particularly when it comes to length of stay ie. 1 week vs 1 month vs 3 months vs 6 months vs 12 months.

                        Who wants to go thru the rigmarole of going to the NCAT just ‘as a test case’ ?

                        ( By-laws should not be in place just so the committee can use them as a means to beat owners about the head and ‘threaten’ them with legal action/a fine )

                        22/06/2017 at 11:28 am in reply to: Can we create a bylaw banning Airbnb? #27332
                        pielover

                          Jimmy,

                          Yes, but the 1st step is to ensure you have a ‘valid’ by-law to start with. The main issue at hand is the length of stay ie. a few days or a few months.

                          If, for example, a passed by-law could state : ‘The tenancy must be for a minimum of 12 months’ then it is the by-law itself which needs to be taken to the NCAT ; not wait for someone to ‘breach’ it, then challenge the committee to take it to the NCAT for the purpose of imposing a fine. Only to then have the committee think “Gee, maybe we can’t enforce this by-law anyway…What if the NCAT doesn’t accept it ?…So, what do we do now ?‘”

                          As you have stated : There is another principle of strata law, and that is you can’t pass by-laws that would supersede superior law….We don’t get to set our own definitions – we have to take those established by superior laws such as the RTA and/or council by-laws.

                          22/06/2017 at 9:39 am in reply to: Can we create a bylaw banning Airbnb? #27327
                          pielover

                            Jimmy :

                            You stated “The Residential Tenancies Act establishes residential tenancy as at least 30 days and many if not most councils define the minimum residential tenancy as three months.”

                            It would be helpful if you could you publish the appropriate links.

                            I thought the RTA was explicitly ‘3 months or more’ ?

                            Any Sydney councils LEP state 3 months (as I have not seen any) ?

                            If a council LEP doesn’t, does it ‘default’ to the RTA ?

                            thnks

                            22/06/2017 at 9:34 am in reply to: Can we create a bylaw banning Airbnb? #27326
                            pielover

                              Fair Trading has (re)republished (ie. Jan 2017) their ‘Strata Living’ guide since the new legislation. It is noteworthy that the section on Short-term letting (page 28) has actually been changed to ADD a paragraph. 

                              https://www.fairtrading.nsw.gov.au/pdfs/about_us/publications/ft045.pdf

                              Added paragraph :

                              “Strata laws prevent an owners corporation restricting an owner from letting their lot, including short-term letting. The only way shortterm letting can be restricted is by council planning regulations.”

                              If this is how FT apply the law(can we say it is ‘their own’ law ?) in plain english, then how is it that lawyers are prone to play with their own interpretations, and OCs get creative in ‘making up’ their own by-laws to contravene FT’s own interpretation ?

                              Why should it be a case that someone has to take it to the NCAT to ‘see what happens…’ ?

                              22/05/2017 at 10:35 pm in reply to: Is mediation worth the effort #27149
                              pielover

                                Just to clarify the above post…

                                I am trying to find previous cases relating to the following ie. passed by-laws which do not comply with the legislation :

                                Strata Schemes Management Act 2015 ( Sections 139 & 150 )

                                which equate to :

                                Strata Schemes Management Act 1996 ( Section 49 & 153 )

                                18/05/2017 at 8:38 pm in reply to: Is mediation worth the effort #27134
                                pielover

                                  The matter is to do with passed by-laws which do not comply with the legislation, so Section 139 & Section 150 would appear to be the relevant sections,

                                  thanks

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