Home » Strata Management Update: Blanket bans prohibiting pets in strata rules are now invalid

Strata Management Update: Blanket bans prohibiting pets in strata rules are now invalid

Posted by Ben Robertson | 26 February 2021 | Construction & Infrastructure

Due to the recent case of Cooper v The Owners: Strata Plan No 58068 [2020], strata rule obligations regarding pet ownership have changed – If you are an owner of property in a strata scheme, a recent court decision may make it easier to keep a pet at your property. 

On 12 October 2020, the NSW Court of Appeal struck down a strata by-law which contained a blanket prohibition on keeping animals as pets.[1]

Resulting consequence of this decision means that any strata by-laws which place a blanket ban on keeping pets in an apartment would in breach of NSW strata scheme legislation and be invalid.

However, it may be a step too far to say that strata owners now have the same rights as homeowners to keep pets.

The nature of strata property and common areas brings with them their own restrictions – allowing pets only if they do not interfere with common property or disrupt the neighbours in the strata scheme.

Nevertheless, while the recent judgment makes it easier for tenants and apartment owners to keep a pet, for strata owners there is still considerable ambiguity around the notification and consent processes.

 Strata that continue with by-laws that apply a blanket prohibition on pets would need to be brought to the NSW Civil and Administrative Tribunal (‘Tribunal’) to be overturned, as the overturning of such a by-law is not automatic.

Background

In October 2020, apartment owner Jo Cooper won her five-year long legal battle with the Owners Corporation of the luxury high-rise residential apartment tower, the Horizon in Darlinghurst. The strata scheme of the apartments contained a by-law that imposed a blanket ban on all pets and the Owners Corporation moved to force Jo’s miniature schnauzer to vacate the premises.

The strata by-law in question, number 14 in Strata Plan 58068, contained the blanket prohibition on keeping animals, which stated:

  • 14.1 Subject to section 139(5) of the Act, an owner or occupier of a Lot must not keep or permit any animal to be on a Lot or on the Common Property.
  • 14. 2 [assistance animals are permitted, subject to satisfactory evidence]

By-law 14.2 above is in accordance with s 139(5) of the Strata Schemes Management Act 2015 (NSW) (the Act), which provides that a by-law may not forbid the keeping on a lot in a strata scheme of an assistance animal.

Why was the blanket ‘no pets’ by-law struck down?

The blanket ‘no pets’ by-law was struck down because the Court found that the by-law breached s139(1) of the Act, which states that “a by-law must not be harsh, unconscionable or oppressive.”

Pursuant to s 136(1) of the Act, strata by-laws for the purpose of managing administering or controlling the strata scheme, must only be made for a proper purpose to confer specific functions on the owner’s corporation to make provision with respect to or directly in relation to the use and enjoyment of the lots and the common property.

While the Act provides that certain by-laws may limit a strata owner’s rights, such as by-laws to not cause a nuisance or hazard to the occupier of any other lot or the common property (s 153), the Court reasoned that the prohibition of animals per the by-law is unable to garner validity from any specific provision in the Act.

For instance, s 158 of the Act provides that the Tribunal may enforce the removal of an animal if it “causes a nuisance or hazard to the owner or occupier of another lot or unreasonably interferes with the use or enjoyment of another lot or of the common property.”

However, Basten JA found the by-law to lack “a rational connection with the enjoyment of other lots and the common property” [61] is beyond the power of by-laws conferred by s 136.

An example pointed to by Macfarlan JA was that the keeping of a goldfish in a secure aquarium would under the broad blanket prohibition prevent having such an animal as your pet, despite the absence of any rational view that the keeping of this pet could “adversely affect other lot owners’ enjoyment of their lots or the common property” [79]. Fagan J concluded that the by-law “provides no material benefit to other occupiers” [88], resulting in the assessment that the by-law was “oppressive” [90]-[91] to the extent that it contravened s 139(1).

What is the impact of this decision?

The decision assists owners of lots in strata in having or keeping a pet at their apartment.

However, the decision only enables the Tribunal to invalidate by-laws that apply a blanket ban on pets, rather than directly invalidating all by-laws that restrict pets in strata.

Additionally, the decision of the Court does not directly invalidate all by-laws enabling blanket bans by strata and force them to be struck out.

Rather, in the event a strata scheme does not amend its by-laws to reflect the decision and remove a blanket-ban on keeping pets, a person would need to bring the by-law to the Tribunal in order for it to be overturned.

Moreover, requirements around written notification or seeking consent for pet ownership at a strata lot will probably be unaffected by this decision, and buildings that are not currently pet-friendly will likely only establish marginally less restrictive rules.

Can Renters in strata apartments keep a pet?

The decision of the Court does not affect renters’ present circumstances. Renters face many hurdles in keeping a pet at a rented apartment, and even when a strata scheme allows a renter to keep a pet, the landlord has the final say.

While there is no specific term or provision in the Residential Tenancies Act 2010 (NSW) entitling a landlord to prevent a renter to keep a pet, or require renters to ask for their consent, it is a standard clause of many tenancy agreements to preclude pets. There is no legal barrier to landlords enforcing a blanket ban on keeping a pet at their property.

Going forward, strata schemes will need to carefully craft their by-laws in relation to pets, having regard to the impact of the animal upon other residents and taking into account e.g. noise in the form of incessant barking, impact on common property, etc.

By-laws can still regulate the keeping of animals in a strata scheme, but these by-laws will need to be tailored to the scheme itself rather than utilising the blunt force instrument of a blanket ban.

Resources 

[1] Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 (Basten JA, Macfarlan JA and Fagan J agreeing).

If you require assistance in relation to your strata management requirements, please contact us on construction@nexuslayers.com.au

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 This publication is © Nexus Law Group and is for general guidance only.
Legal advice should be sought before taking action in relation to any specific issues. 

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