Combating Overcrowding

What is overcrowding?

The term “overcrowding” is commonly used for the situation where the number of occupants exceeds that for which there is designated space for sleeping. It has become widely accepted that the maximum number of adults living in an apartment should not exceed 2 per bedroom.

Overcrowding also includes “hot-bedding”, where occupants use the same beds in rotating shifts.

Amendments in the NSW Residential Tenancies Act 2010 No 42 make it easier for apartments to be sublet, further exacerbating the issue of overcrowding.

Is it illegal?

Legislation has not kept up with what’s happening, although it is starting to be addressed in many jurisdictions.

Many newer strata buildings have caveats placed on their development approvals to limit the number of people allowed per bedroom and prohibit short-term or tourist rentals. For example, in 2006 the City of Sydney introduced a consent condition for apartments that limits adult occupants to two per bedroom.

Unfortunately though, there are currently no timely and effective methods of enforcement.

Signs of overcrowding

Some of the tell-tale signs are:

  • Excessive water consumption that cannot be explained by common property leaks and inefficient fixtures & fittings in apartments
  • Bunk beds & mattresses on balconies, living areas and bedroom
  • Large amounts of washing on balconies
  • Windows shrouded all day
  • Constant sound of running water in apartments
  • People always waiting in the foyer for someone with a key to arrive
  • Ads for flatmates on poles around the city
  • Ads for flatmates in Gumtree

Practical strategies to eliminate overcrowding

1.   Ensure someone has responsibility to monitor and manage occupancy in the building.

Ideally this is your building manager or a combination of your building manager and concierge, depending on the resources available to you

2.   Know & understand the relevant legislation

Currently the Strata Schemes Management Act 1996 and the Residential Tenancies Act 2010 only provide that:

  • The owners corporation must be given notice of leases or subleases. The notice must specify the name of the lessee or sublessee (Strata Schemes Management Act 1996 S119)
  • Landlords are only required to give keys for residential premises and common property to tenants named in a residential tenancy agreement (Residential Tenancies Act 2010 S70)
  • Tenants may transfer a residential tenancy agreement or sub-let the premises only with the written approval of the landlord (or landlord’s agent) (Residential Tenancies Act 2010 S74)
  • A landlord can withhold consent to a transfer of sub-let if the number of proposed occupants is more than the number permitted by the residential tenancy agreement or if the landlord believes it would result in the premises being overcrowded (Residential Tenancies Act 2010 S75)

Note: The sections referenced above has been reproduced below

There are still gaps that can be covered by by-laws, and then it becomes a matter of enforcement – both of the legislation and the by-laws.

3.   Enact sufficient by-laws

Each building is unique and there’s no one-size-fits-all when it comes to by-laws. By-laws that might be considered pertain to:

  • Prohibiting subdivision of rooms in a lot
  • Maximum occupancy of lots
  • Minimum rental terms
  • Conditions for tenanted lots, in addition to those covered by legislation
  • Restricting use of common property, by permanently disabling access tags/cards held by unauthorised tenants
  • Detailing the relevant council caveats on development approvals, so that they can also be enforced as by-laws in addition to/instead of council enforcement options
  • Identity checks required to obtain access tags/cards

These are some examples of relevant by-laws.

4.   Complementary actions, processes & procedures

Processes & procedures are necessary to monitor and enforce compliance with legislation and by-laws. Additional actions can also be implemented as deterrents. These include:

  • Relocation of mailroom/letter boxes to a secure room accessible only with restricted keys or access cards – to foil the practice of duplicating letterbox keys for all tenants and leaving apartment & access tags in the letterbox
  • Installation of restricted keys on letter boxes – for same reason as above
  • Upgrade access control systems so that tags/cards cannot be copied
  • Upgrade to anti-tamper digital intercom systems
  • Remove intercom functionality to allow lift access. This restricts the use of illegal/copied devices, but requires all guests to be collected in the foyer where activity can be monitored in person or via CCTV
  • Install CCTV in lifts
  • Install CCTV on residential floors. If each floor is wired, temporary plug & play cameras can be moved to monitor suspected lots when required rather than installing permanent cameras on each floor
  • Temporary hire of security for 24 our surveillance of intercom and lift activity over a number of days
  • Check for overcrowding during annual fire inspections
  • Daily/regular monitoring through the access control system of access tag/key usage will identify keys with unusually high usage indicting use by multiple people or duplication
  • Annual access tag/key audit

Relevant Legislation

Strata Schemes Management Act 1996 S119

119   Notice to be given to owners corporation of leases or subleases

  1. If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation within 14 days after the commencement of the lease.

Maximum penalty: 5 penalty units.

  1. If a lot is subleased, the sublessor must give notice of the sublease, in accordance with this section, to the owners corporation within 14 days after the commencement of the sublease.

Maximum penalty: 5 penalty units.

  1. If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation within 14 days after the execution of the assignment.

Maximum penalty: 5 penalty units.

  1. The notice must specify:
    1. the name of the lessee, sublessee or assignee, and
    2. the date of commencement or assignment of the lease or sublease, as the case requires, and
    3. the name of any agent acting for the owner in respect of the lease or sublease.

Residential Tenancies Act 2010

70   Locks and other security devices

  1. A landlord must provide and maintain the locks or other security devices necessary to ensure that the residential premises are reasonably secure.
  2. A landlord or landlord’s agent must give to each tenant named in the residential tenancy agreement a copy of the key or any other opening device or information required to open a lock or security device for the residential premises or common property to which the tenant is entitled to have access.
  3. The initial copies are to be provided free of charge but the landlord may recover from a tenant the cost of providing replacement or additional copies.
  4. This section is a term of every residential tenancy agreement.

74   Transfer of tenancy or sub-letting by tenant

  1. A tenant may transfer the tenancy under a residential tenancy agreement to another person or sub-let the premises to another person, if the landlord gives written consent to the transfer or sub-letting.
  2. The landlord must not charge for giving consent to a transfer or sub-letting, other than for the reasonable expenses of giving consent.
  3. This section is a term of every residential tenancy agreement.

75   Consent to transfer of tenancy or sub-letting

  1. No requirement for reasonable refusal for whole transfer or sub-letting

    The landlord may withhold consent to a transfer or sub-letting relating to the whole tenancy or residential premises whether or not it is reasonable to do so.
  2. Consent must not be unreasonably withheld for partial transfer or sub-letting

    The landlord must not unreasonably withhold consent to a transfer of a tenancy or sub-letting of premises if the transfer results only in one or more tenants in addition to an original tenant under the residential tenancy agreement or the partial sub-letting of the residential premises occupied by the tenant.
  3. Without limiting subsection (2), the landlord is entitled to withhold consent if:
    1. the number of proposed occupants is more than the number permitted by the residential tenancy agreement or any applicable consent or approval under the Environmental Planning and Assessment Act 1979, or
    2. the proposed tenant or sub-tenant is listed on a residential tenancy database in accordance with this Act, or
    3. the landlord is reasonably of the opinion that the transfer or sub-letting would result in the residential premises being overcrowded.
  4. Subsections (1)–(3) are terms of every residential tenancy agreement. Subsections (2) and (3) do not apply if the landlord is a social housing provider.
  5. Remedy if landlord refuses consent

    The Tribunal may, on application by a tenant, order that the tenant may transfer a tenancy or sub-let residential premises as referred to in subsection (2) if the Tribunal is of the opinion that the landlord’s failure to consent is unreasonable.
Last Updated: 
Wed 04/12/2013

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