This Q&A about Coronavirus (COVID-19), Airbnb and short term letting in NSW strata schemes has been supplied by Allison Benson, Kerin Benson Lawyers. The information contained in this article is correct at time of publishing.
Question: We have a lot owner who short term lets their unit on Airbnb. Most residents in the complex are elderly and we are concerned about Coronavirus. What can we do?
We have a lot owner who short term lets their unit on Airbnb. Our complex has a Bylaw prohibiting short term letting, but regardless of that, our local Council has been fighting against the offending owners as our area is zoned residential only.
This has been going on for about 9 months. I now find that they are advertising again and have a booking starting for a week starting next week.
We are a reasonably sized townhouse complex with mainly retired and older owners who fall in the category of ‘most vulnerable” with regards to CoronaVirus.
With the Government rules and the lack of regard to rules and bylaws by the lot owners of this Airbnb, where do we stand in regards to prohibiting any holidaymakers from staying?
Related Article: Q&A Closing The Strata Pool and Gym Because of Coronavirus
Answer: From 10 April 2020, owners corporations will be able to rely on by-laws that prohibit short term letting provided the lot is not also the occupant’s principle place of residence.
This question needs to be answered in two parts:
Part 1 – the current legislation and case law
On the basis of the current strata schemes legislation and case law, if the decision of NCAT in Estens is followed, then any by-law that prohibits the use of a lot for short term accommodation will be invalid and it will be of no force or effect.
While I believe a case where planning legislation (that is the Environmental Planning & Assessment Act 1979) had the effect that there was no required development consent for the use of a lot for short term accommodation and there was a by-law prohibiting any unlawful short term accommodation, the by-law would be valid this situation has not been the subject of a reported decision, unfortunately. At best, council may enforce the terms of any development consent.
I would write to advise the lot owner that any insurance for their lot may not cover them especially if development consent is required and has not be obtained. On a more practical note, if this type of use is occurring and the persons had arrived within the last 14 days from overseas by air (or by boat from anywhere other than in NSW) then you could call the police or crimes stoppers every time the short term stay parties left the lot and attempt to have the police enforce any required self isolation period. If you mentioned this to the lot owner then it may act as a deterrent. Further, if the use of the lot has changed, i.e. it is only now being used for short term accommodation, then your strata manager should check to see if any insurance premium increase is caused and, if so, the owners corporation should seek that lot owner’s consent to paying that increase in premium.
Part 2 – fast forward two weeks: the legislative position will be changing on 10 April 2020.
From 10 April 2020, owners corporations will be able to rely on by-laws that prohibit short term letting provided the lot is not also the occupant’s principle place of residence. Then NCAT action can be taken to prevent this use provided you have evidence of the use, the lot owner / occupant does not use the lot as their principle place of residence and the scheme has a by-law prohibiting short term letting.
I mention from overseas by air or by boat as the only restrictions that I am aware of at the moment in relation to travel and self isolation in NSW relate to travel by boat and travel by air. The air transport restrictions relate to people who have been outside Australia, the maritime restrictions relate to people coming from outside NSW. These public health orders change frequently, however. They are, as at 6.30 pm 30 March 2020 published as being:
Public Health (COVID-19 Air Transportation Quarantine) Order 2020 [NSVV]:
5 Directions—persons arriving in NSW
- The Minister directs that a person (a relevant person) who arrives in New South Wales by aircraft and who has, within 14 days immediately before that arrival, been in a country other than Australia must do one of the following as directed by the Commissioner of Police— (a) go directly to a quarantine facility specified by the Commissioner of Police, (b) go directly to a medical facility for treatment. Note. The Public Health (COVID-19 Maritime Quarantine) Order 2020 provides for the requirements that apply to persons arriving in New South Wales by vessel.
- The Minister directs that a person required to go to a quarantine facility or medical facility under subclause (1) must comply with any directions of the Commissioner of Police in relation to the person’s transit at the airport or travel to the quarantine facility or medical facility.
- The directions under this clause do not apply to a person who arrives in New South Wales in the person’s capacity as a member of the flight crew of an aircraft.
Public Health (COVID-19 Maritime Quarantine) Order 2020:
4 Directions—persons arriving in NSW on a vessel
- The Minister directs that a person (a relevant person) who has arrived in New South Wales on a vessel that has come from a port outside of New South Wales must not disembark from the vessel unless the person— (a) is authorised to do so by the Commissioner of Police, or (b) is required to do so because of an emergency.
- The Minister directs that a relevant person who is authorised to disembark from a vessel must do one of the following as directed by the Commissioner of Police— (a) go directly to a quarantine facility specified by the Commissioner of Police, (b) go directly to a hospital or other medical facility for treatment. (3) The Minister directs that a relevant person must, subject to any direction of the Commissioner of Police, remain at a quarantine facility or hospital or other medical facility for .14 days from the time of arriving in New South Wales.
Have a question about Coronavirus (COVID-19), airbnb and short term letting in NSW strata schemes or something to add to the article? Leave a comment below.
- SCA (NSW): Concern About Growing Impact of Coronavirus Disease 2019 in NSW
- NSW government cracks down on holidaymakers, threatens fines
- NSW Fair Trading: Changes to short-term rental accommodation
- NAT: Coronavirus & Strata – What Does the Legislation Say? Not Much
Please note: This is not intended to be legal advice. You should seek legal advice specific to your situation.
This post appears in Strata News #335.
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