Pets in strata: NSW’s highest court rules “no pets” by-law is oppressive
After a long-standing battle, the Court of Appeal of the Supreme Court of NSW handed down a ruling that a Sydney strata scheme’s blanket “no pets by-law” is oppressive under Section 139(1) of the Strata Schemes Management Act 2015
The Court decision, which creates a precedent for lower courts and tribunals, leaves the way open for NSW animal lovers to be able to keep a pet in their strata property, as long they abide by other strata by-laws.
New South Wales
dog fight that changed strata pet by-laws
As the saying goes, “every dog has it’s day”. And this was the case when, in September this year, apartment owner Jo Cooper won a five-year legal battle with an exclusive Sydney apartment building that tried to ban her from keeping her miniature schnauzer, Angus, in her apartment.
In a separate and unrelated matter, an amendment to the Strata Schemes Amendment (Sustainability Infrastructure) Bill submitted by the Animal Justice Party’s Emma Hurst, passed in the NSW Legislative Council. The amendment proposed the removal of any by-laws that “unreasonably prohibit the keeping of animals”.
At the time in late August, it was not anticipated that the NSW government would support the change, which lacked any further detail. However, the Supreme Court ruling means that some change to the Strata Schemes Management Act is likely. The NSW government had already planned to review the strata laws in November 2020.
NSW Fair Trading has updated its website to reflect the Court’s decision: “Owners corporations should review their by-laws following the Court of Appeal decision” in Cooper v The Owners – Strata Plan No 58068 NSWCA 250.
ications for owners corporations
The Court’s decision has a significant impact on strata schemes across New South Wales. It removes the right of owners corporations to impose a blanket ban on pet ownership for apartment complex residents.
Instead of standing by a “no pets” policy, strata schemes should obtain legal counsel to help draft by-laws that permit and carefully manage pet ownership.
New South Wales, keeping animals in apartment buildings is permitted under certain conditions. Owners corporations should not unreasonably withhold approval for residents to keep an animal.
There are two options outlined in the model by-laws for when apartment owners ask to keep a pet:
Option A: Allows pets to be kept provided that the owners corporation is notified.
Option B: Requires consent of the strata committee before a pet is allowed. Consent must not be unreasonably refused and rental tenants in strata schemes still need to seek approval from their landlord as well as from the strata committee.
By-laws allow the keeping of pets on strata-titled property. If there is no specific body corporate by-law that regulates the keeping of animals, you do not need to ask for permission to keep a pet. However, you must still consider other body corporate by-laws which may apply, such as noise or interfering with the use and enjoyment of another lot or common property.
The body corporate may withdraw approval for an animal if there is evidence the animal is causing a nuisance to other owners or occupiers of the scheme.
In Victoria, the Residential Tenancies Act 1997, section 71B was updated to ensure that a landlord could only refuse a tenant’s request to keep a pet with the approval of the Victorian Civil and Administrative Tribunal. These changes came into effect in March 2020.
Model rule 3.1(4) in the Owners Corporations Regulations 2007 states that an owners corporation can serve a notice to remove an animal from common property if it is causing a nuisance. The owners corporation can decide whether a pet constitutes a nuisance before resolving to remove the animal.
Assistance animals and the Disability Discrimination Act
The only animals that cannot be prohibited within any strata scheme are assistance animals as referred to in Section 9 of the Disability Discrimination Act 1992.
An assistance animal is defined as a dog or other animal which is properly accredited or trained in such a way as to assist a person with a disability to alleviate the effect of the disability and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.
If you have a disability and rely on your animal, you do not need to ask permission before bringing assistance animals into a strata property. However, the strata committee may request proof that that the animal is a duly qualified assistance animal.