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The Insurance Council of Australia’s General Manager specified during a NSW Parliamentary Inquiry into the regulation of short-term holiday letting that there is a clear matter of disclosure and obligations on consumers under the Federal Insurance Contracts Act. Members of State Parliament have ignored this advice together with the wording of the Federal legislation: An Insurer is “to inform” (the Insured) of a “duty of disclosure”. The Insured, where he/she “failed to comply with the duty of disclosure or made a misrepresentation to the Insurer before the contract was entered into, if the failure was fraudulent or the misrepresentation was made fraudulently, the insurer may avoid the contract”.

Airbnb has a ‘Host Guarantee’; predictably it contains an arbitration and class action exclusion clause. And as expected, Airbnb’s Terms of Service ensure that it is not held liable where an Insurer renders an insurance policy void:

7.1.8 Airbnb recommends that Hosts obtain appropriate insurance for their Host Services. Please review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Guests (and the individuals the Guest has booked for, if applicable) while staying at your Accommodation or participating in your Experience, Event or other Host Service.

11.2 I - …Airbnb also reserves the right to otherwise collect payment from you and pursue any remedies available to Airbnb in this regard in situations in which you are responsible for a Damage Claim, including, but not limited to, in relation to any payment requests made by Hosts under the Airbnb Host Guarantee…

Airbnb does not want a registration or compliance regime in NSW. Instead, it insists its commercial operations be based on ‘trust’. And those at ASTRA (Australian Short-Term Rental Association) reject issues of compliance as “overly restrictive and make compliance too expensive”.

Draft documents prepared for State Government by the Department of Planning, Industry and Environment (DPIE) are proposing that short-term rental landlords be ‘trusted’ on issues ranging from appliances and fixtures requiring the regular, ongoing checking and labelling by Fire Inspection Officers, together with the installation, placement and effectiveness of smoke and carbon monoxide alarms. Under National Construction Codes (NCC), we are to ‘trust’ that these landlords will comply with other critical criteria such as:

Design and Construction, Classifications of Buildings and Structures, Fire Resistance and Stability, Compartmentation and Separation, Protection of Openings, Provision for Escape, Construction of Exits, Access for People with Disabilities, Fire Fighting Equipment, Smoke Hazard Management, Lift Installations, Emergency Lighting, Exit Signs and Warning Systems, and Health and Amenity provisions. Ancillary Provisions include: Minor Structures and Components, Heating Appliances, Fireplaces, Chimneys and Flues, Atrium Construction, Construction in Alpine Areas, Construction in Bushfire Prone Areas, and Maintenance of Equipment and Safety Installations.

In terms of child safety, the DPIE’s draft documents will also see relegated to ‘trust’ items such as mandatory blind and curtain cord requirements, together with a range of other issues as listed on the Government’s ‘Kidsafe NSW’ website…until the deaths of children in an Airbnb and other holiday rentals see the Insurers called. MPs and Legislators have managed to ignore the deaths of these two particular four-year-olds, plus the deaths of many more young adults.

Other legislation relating to safety: Swimming Pool requirements.

And that ‘electrician’ who came on site and fiddled with a faulty light switch in a short-term rental property…did anyone verify that he/she has the necessary Tradesperson certificate and insurance?

The proposed alterations to the State Environmental Planning Policy (Exempt and Complying Development Codes) [SEPP] “must be of minimal environmental impact”. When one understands that the propositions advanced by the Department of Premier and Cabinet are argued to be legally mistaken (170109AP), the push to grant State Government’s Destination NSW, Airbnb, Expedia/Stayz, ASTRA and hundreds of foreign-based booking platforms unrestricted access to NSW housing would also be legally flawed.

NSW Planning Minister Rob Stokes must decide whether the proposed change to the SEPP ‘merely’: a) invalidates residential development consent conditions, b) represents an incalculable import while providing zero relief to Residents and accredited Accommodation Providers, c) is akin to an acquisition of valuable proprietary rights without compensation, d) circumvents the Federal Disability Discrimination Act 1992 plus National Construction Codes, and by default, e) renders fraudulent any insurance cover on thousands of non-compliant residential dwellings operating as pseudo hotels.

From ‘night one’, the short-term rental of a residential dwelling is a ‘commercial use’. How many short-term rental properties in NSW comply with mandated National Construction Code ‘Deemed-to-Satisfy’ provisions for commercial Class 1(b) or Class 3 premises? Next to none?


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