June 15, 2020 at 3:56 am #231118dbstrataMember
If a strata scheme is restricted to the occupancy of senior or disabled persons (as defined by the SEPP – Housing for Seniors or People with a Disability) and an owner of a lot within that scheme leases to a tenant who is not senior or a disabled person, what recourse does the owners corporation have?
dbstrataJune 15, 2020 at 6:20 pm #231204Amanda FarmerExpert
I assume there’s no by-law in place that would cover this situation? Eg – model by-law 18 in the 2016 Regs provides:
18 COMPLIANCE WITH PLANNING AND OTHER REQUIREMENTS
(1) The owner or occupier of a lot must ensure that the lot is not used for any purpose that is prohibited by law.
(2) The owner or occupier of a lot must ensure that the lot is not occupied by more persons than are allowed by law to occupy the lot.
If not, think about introducing one…
Otherwise, report the illegal occupation to the local council. Just make sure you’re on solid ground first – you don’t want to be reporting a breach based on an assumption which could prove incorrect…
Amanda.June 15, 2020 at 7:58 pm #231218Murphy BrownMember
Great question! I will be interested to hear a response to this. It sounds like a breach of the DA but I wonder whether that would even expose the Strata to penalties from the local Council, given that I’m don’t know whether it is the Strata’s responsibility to police the DA of individual lots, but I’m not an expert, so I will await the answer to this one with baited breath. Maybe the owner of the lot is potentially exposed to penalties?
Of course I am also wondering how it is known that the tenant does not fit these categories, since disabilities can be invisible, particularly if they relate to mental health but they still fit the criteria of a Person with a Disability under current Disability legislation, including the NDIS.June 18, 2020 at 8:39 pm #231436Amanda FarmerExpert
Hi Murphy Brown, see my response above your post 🙂
Amanda.July 19, 2020 at 10:15 am #233322dbstrataMember
Thank you for your input. Extremely helpful as always.
Assuming that there is a supporting by-law, in conjunction with the planning certificate, would then be reasonable for the owners corporation to request that the tenant provides evidence of their age, or would that be a violation of their privacy?
dbstrataJuly 19, 2020 at 7:38 pm #233341Amanda FarmerExpert
I’d approach it a different way: ask the owner to provide evidence of their compliance with the planning instrument (and by-law, once it’s in place). On that note, you should probably include a clause in the by-law which requires an owner to provide such evidence, upon request. You can make suggestions as to ‘acceptable’ evidence which may include an identity document showing a date of birth.
The trickier aspect is the ‘disability’ provision – as Murphy Brown points out above, someone may meet the requirement of disability without this being obvious to the casual observer.
I suggest, make the request first and see what comes back. They may be more forthcoming than you expect.
It is also important that you’re referring to the correct instrument when reminding the owner of their need to comply: SEPP (Housing for Seniors or People with a Disability) 2004 is the planning policy – it’s not the instrument that binds the strata scheme. You need to find out what is registered on the common property title – is there some covenant or similar shown in the second schedule? Usually, it would be a condition of development consent for a restrictive covenant to be registered with the strata plan. That is the document you need to refer to in your communications with the owner – and to which you should cross-refer in the by-law.
Amanda.July 25, 2020 at 11:25 am #233788dbstrataMember
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