Real estate agents across Byron Shire are being formally warned that they could face prosecution by Byron Council if illegal holiday letting is taking place at any of properties they manage.
In a move that opens up a new front in the fight against short-term letting, the council is sending letters to every real estate agency in the shire declaring that from now on they, and not just the owner of a property, could be held responsible for illegal short-term letting.
The letter states, ‘To date agents/agencies have expressed the view that it is the owner of the property who is responsible … and not the agency.’
‘[But] having taken legal advice, Council is of the view that a real estate agency can be held to be in breach of the law by using the land for short-term accommodation, contrary to the conditions of the development consent.’
The agencies are being told to ensure that the properties they manage are not being used for unauthorised short-term letting or face the prospect that Council ‘may commence proceedings’.
Greens councillor Michael Lyon said the letters were not an empty threat and that Council would ‘absolutely’ prosecute a local real estate agent who managed a property where illegal short-term letting was taking place.
‘We will do anything we need to to bring about the return of these properties to the long-term rental market,’ Cr Lyon said.
‘We’re under attack as a community and we are determined to tackle this issue head on.’
But agents said the letters were little more than ‘sabre rattling’ and had no legal weight.
‘I don’t think they’ve got a leg to stand on to be honest,’ said Tony Farrell, the licensee of L J Hooker Byron Bay.
‘The legal case they’re referring to in the letter to support their argument is rubbery at best. I can say that because we’ve had legal advice to that effect,’ he said.
Mr Farrell also said that an ‘enormous amount of money came into the local community and economy’ through holiday letting.
‘At our agency, three of our 14 staff do holiday letting, we employ six or seven cleaners, and I don’t know how many tradesmen,’ he said.
He also said that there were significant benefits to having agents involved in the process of letting out properties to holiday makers on a short-term basis rather than property owners doing it themselves.
‘At least when there’s an agent there’s someone with some responsibility for the property that neighbours can come to if there’s a problem. It’s much more of a problem when people are letting their rooms and their houses without an agent out and then going away.
The warning to agents comes about three weeks after similar letters were sent to more than a hundred property owners across the Shire.
The Echo understands these had a similar tone – advising owners that Council was cracking down on unauthorised letting and wasn’t afraid to prosecute if it obtained proof of non-compliance.
Cr Lyon said that 180 properties across the Shire were currently under investigation for unauthorised letting.
‘We’re compiling evidence for those properties because they’ve been flagged as being potentially in breach of their development consent orders,’ Cr Lyon said.
He also said that he and the other Greens councillors were determined to go ahead with a precedent-setting prosecution of two landlords in the Land and Environment Court.
This case, announced more than three months ago, was intended to pave the way for a crackdown on illegal letting across the Shire and beyond.
However, the prosecution appeared to stall after Council received legal advice that it needed more evidence against the alleged offenders in order to achieve the result it was after.
This had led some to wonder whether the case would ever see the light of day, given that no proceedings have actually been filed.
But Cr Lyon was adamant the action would go ahead.
‘Yes, we’ve had some hoops to jump through, but the most important thing is that we win the case and get the precedent we need and we’re determined to proceed.
‘Only yesterday the notice of proposed orders, which is a necessary step in the process, was sent to the two landowners. I’m very confident it will go ahead.’