091. How WA’s highest court upheld a by-law preventing short stays

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This week, I have the privilege of interviewing Mark Atkinson of Atkinson Legal. This year, Mark’s client successfully convinced the Western Australian Court of Appeal to uphold a bylaw which effectively prohibited holiday lets. Mark summarises the facts and findings of the case and shares his guidance for buildings trying to regulate short stays. This is an important case for buildings and owners nation-wide and a ‘don’t miss’ episode.

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5 Comments. Leave new

  • YSP Case database https://yourstrataproperty.com.au/estens-v-owners-corporation-sp-11825-2017-nswcatcd-52-6-july-2017/
    Invalidity of special by-law prohibiting illegal uses including short term lettings – by-law capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing related to a lot.

    http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCATCD/2017/52.html

    Reply
  • What if they had a problem with the house they have transferred into? Don’t they have an option to be exempted or to give a valid reason?

    Reply
    • Hi Kate, thanks for the question. The options available would depend on the terms of the by-law in each case. Feel free to read the case (link above) for the terms of this by-law in particular.

      Reply
  • Deborah Carlsson
    May 13, 2020 12:21 pm

    Could you please advise if 3 out of 4 owners pasted a resolution at a meeting without having the item on the agenda is this legal?
    I own one of the 4 units and never have a say in any decisions or how the strata fees are spent.

    Reply
    • Hi Deborah,

      I sent your question on to Mark Atkinson and he has replied with the following comments, relevant to WA strata law. I hope this is helpful for you:

      – Some matters (but not all) can be raised, discussed and resolved at a meeting, even if not on a formal agenda, if the majority want to do that
      – Would a vote based on unit entitlements help?
      – The amended Strata Titles Act creates significant new obligations on strata companies to consider the interests of all owners, particularly s119
      – If the strata company does not meet their obligations under the amended STA, a minority owner might be able to apply to the WA Tribunal (for a small filing fee) to try to overturn any decision of the majority.
      – Amended Strata Titles Act is available at legislation.wa.gov.au – have a look at Parts 8 and 13 particularly

      Reply

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