February 17, 2017 at 3:18 pm #3293AnonymousInactive
Can you please advise the risks that owners corporations and lot owners face if lots are not being used in accordance with the approved development consent by council. For example it is not uncommon for some or all of the lots in holiday / motel style buildings to become permanent residences over time; and for owners to be unaware that they are not complying with the approved DA.
What advice would you give to an owners corporation where the approved use is for holiday letting but some or all of the lots are being used as permanent residences either by the owners or by tenants. What are the possible consequences of doing nothing?
Thank you.February 22, 2017 at 9:54 am #3326Amanda FarmerExpert
To answer this question properly I would need to see the development consent for the site as well as a copy of the registered by-laws. For now, some general points to note:
– if permanent residences are a breach of the development consent, the Council may issue an order and/or a fine. Query whether this would be issued to the lot owners individually or the Owners Corporation. This may depend on what wording is used in the development consent, eg: is it the building that may only be used for short stays, or the lots?
– it could be alleged (by Council or other disgruntled parties) that the Owners Corporation is not fulfilling its legal obligation to properly manage, control and administer the scheme, where it is a passive observer of lots being used in breach of the development consent. On this basis, the Owners Corporation may be the recipient of a Council order or the respondent to a Tribunal application;
– if a lot owner has ever sought advice/guidance from the Owners Corporation/strata committee on whether or not a lot could be used as a permanent residence, and if the OC/SC has given advice that is contrary to the approved use of the building, the OC/SC may well be liable for loss and damage suffered by that owner (for example – should the Council issue a fine to the owner, the owner may sheet that home to the OC/SC);
– does the scheme have a by-law similar to new model by-law 18: “compliance with planning and other requirements”? If the majority of owners are in breach of this or similar by-law, then the Owners Corporation’s inaction may again be alleged as a failure to properly manage/control/administer the scheme.
For definitive advice specific to this scheme, please contact my team at firstname.lastname@example.org.
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