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Watergate Ruling Impacts Short-Term Lets
1.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au Watergate The Decision & Its Implications April 2013
2.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au Tom Bacon on the Watergate Decision Michael Teys on the Wider Implications Tonight’s Presentations
3.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au About Tom Bacon Tom joined TEYS Lawyers in June 2010 from Auckland, New Zealand, with five years' experience in dispute resolution, local government/ town planning and civil litigation. Tom advises on all aspects of strata community disputes in the Australian states, with current matters in NSW, Victoria and the ACT. Tom is an accredited LEADR mediator, and places a high emphasis on resolving disputes without the need for protracted litigation. In his previous roles, Tom acted on numerous high- value local government and environment appeals, and public indemnity insurance claims. Tom has regularly appeared for clients in both mediations and hearings in the District, Environment and High Courts of New Zealand, and in NSW in the Consumer, Trader & Tenancy Tribunal (CTTT) ,the Local Courts and Supreme Courts.
4.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au The Problem at Partygate 5 operators 40 units Average stay less than 3 nights Cost of additional security and cleaning Diminution of valuable units Owners moving out
5.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au Powers Under the OC Act 2006 S.138 – Power to make Rules of the Owners Corporation – ie, to restrict or prohibit lot owners from letting units for commercial use, or for periods of less than 30 days S.140 – a Rule will be deemed to be of no effect if inconsistent with another Act or Law (ie, Residential Tenancies Act 1997)
6.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au Docklands Zoning / Planning Controls No town planning permit required for commercial activities in prescribed Docklands areas Docklands is a mixed-use zone, designed to cater to a variety of residential and commercial needs in close proximity to each other
7.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au City of Melbourne Enforcement S. 106 Building Act 1993 – the use of the units contravenes the occupancy permit for the building The occupant characteristic, fire safety needs and reaction to a fire or other emergences have varied from that for which the building was originally designed, approved and intended to be used
8.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au Building Code of Australia Class 2 - a building containing 2 or more sole- occupancy units each being a separate dwelling Class 3 – a residential building, other than Class 1 or 2, which is a common place of long term or transient living for a number of unrelated persons, including (b) a residential part of a hotel or motel…
9.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au Meaning of Dwelling Derring Lane P/L v Port Phillip City Council (No. 2) (1998) 108 LGERA 129 “A building constructed for the purposes of people dwelling there permanently or for a considerable period of time, or having in that building their settled or usual abode”
10.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au BAB Findings The building‟s fire safety and construction design never contemplated this commercial use, and may trigger the building‟s fire safety systems to be reviewed and re-designed The use of a hotel business is not permitted within Class 2 buildings and is considered a change of use The Appellants were using the apartments like a „hotel‟ business
11.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au Michael Teys is the Founder and Principal Lawyer of TEYS Lawyers. He has a Bachelor of Laws and practices exclusively in the area of strata title law. He is a Fellow of the Australian College of Community Association Lawyers. He was formerly an Adjunct Lecturer with Charles Sturt University. He appears weekly on SKY News Business Channel's Property Success with Margaret Lomas and is a regular panellist for the property edition of Your Money, Your Call for the same channel. You can read Michael‟s blog at www.michaelteys.com and follow him on Twitter at @MichaelTeys.com Teys Lawyers practice nationally in strata title law representing owners corporations, bodies corporate and apartment owners. The firm‟s practice groups include building defects, strata community disputes, strata titles property law, by-laws and levy collection. Subscribe for their free e-newsletter StrataSpace and find out more about them at www.teyslawyers.com.au About Michael Teys
12.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au Watergate‟s Wider Implications Residential Class 2 dwelling does not include the use by short term guests with hotel-style services All strata owners and managers where lots are used this way Breaches Building Act and vitiates insurance policies Docklands, Vic toria, Australia
13.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au The Fundamental Strata Duties To act honestly and in good faith To exercise due care and skill
14.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au The Chain of Legal Liability OC (S.5) Committee (S.117) Managers (S.122)
15.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au The Statutory Duty to Insure Strata S.59 building insurance S.60 public liability Insurance Contracts Act (1984) (Cth) duty of disclosure
16.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au Alteration of Risk Exclusion You must promptly advise us…….. if the nature of the occupation or other circumstance affecting your insured property is changed in such a way as to increase the risk of loss or damage or the likelihood of liability losses
17.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au Strata Bodies Have Unlimited Liability An uninsured owners corporation or body corporate must still pay a damages award Unlike shareholders and club members, lot owners do not have limited liability An administrator will be appointed to strike a levy to cover damages and costs
18.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au Recommended Action Make enquiries about use Report improper use to local authorities Notify insurer Join appeals / prosecutions 1. 3. 2. 4.
19.
© Copyright TEYS
Lawyers 2013 www.teyslawyers.com.au About Nicole Wilde Nicole joined TEYS Lawyers in September 2012 having previously practised for four years as a Barrister and Solicitor in Auckland, New Zealand. Nicole advises both owners corporations and lot owners in respect of all types of Strata Community disputes throughout Australia. Nicole has advocacy experience in a range of Courts and Tribunals and is dedicated to providing clear, quality legal advice and representation. In her previous roles, Nicole acted on high-value construction defect proceedings on behalf of plaintiffs against local government and contractors. She has been involved in all stages of the litigation process. In her role as a solicitor for the Office of the Crown Solicitor in Auckland, Nicole provided advice and prosecutorial representation to the regulator of the property agents industry.
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