By now you would have heard all about the Supreme Court of Appeal decision in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA (Cooper). If you missed our recent article on Cooper and what it means for pets bans and by-laws in strata schemes, you can read all about this here.

You are probably thinking what now? Maybe your strata scheme contains a by-law with the same terms and conditions as the Horizon’s and prevents lot owners from keeping an animal within their lot.

By now you are also wondering what this means for your building and if the pet ban by-law in your building is now invalid and automatically oppressive? We answer these questions and more below.

Are all blanket ban pet by-laws in strata schemes automatically invalid?

At this point in time, no.

All by-laws that have been validly passed by the owners’ corporation and registered on title remain valid until such time  that the by-law is challenged in the NSW Civil and Administrative Tribunal (the Tribunal) by a lot owner or changed by a special resolution of the owners’ corporation.

All lot owners have the right to file an application with the Tribunal to seek an order that the by-law is declared invalid under section 139 of the Strata Schemes Management Act 2015 (NSW).

However, this may change if the NSW Government intervene and enact legislation to reflect the legal precedent from Cooper. (or overturn it!).

Until any of the events above occur, all validly passed by-laws remain in force.

Does this mean that there is no requirement to revise our by-laws?

Following the Cooper case, all owners’ corporations must move fast to review and revise its by-laws, especially those that impose a blanket prohibition on the keeping of pets within a lot.

This is because it is only a matter of time before a lot owner challenges the by-law in the Tribunal which is a costly exercise for all parties. The Tribunal must follow the Court of Appeal decision in Cooper and will declare a by-law that contains the same terms as the Horizon’s by-law as invalid.

You may as well get ahead of the game and voluntarily revise your by-laws now before a lot owner takes legal action against the owners’ corporation.

What does this mean for my building?

The owners’ corporation still has the power to impose conditions on the keeping of pets. The Cooper case established that an owner may keep an animal in their lot to the extent that the keeping of the animal does not impact another owner’s use and enjoyment of their lot, or adversely impact the use of common property. These are very important limitations on the general principle that a lot owner can keep a pet.

This means that we can work with your building to prepare a by-law that contains the following conditions:

  1. That a lot owner is permitted to make an application to the Strata Committee for the keeping of an animal;
  2. The approval for that application cannot be unreasonably withheld; and
  3. If approval is provided, the keeping of the animal will attach conditions such as:
    • The animal cannot enter common property and if it does, it must be supervised and controlled at all times; and
    • If the animal emits excessive noise or behaves in a manner that materially impacts another lot owner’s use of their unit, permission to keep the animal can be revoked.

Whilst the Cooper case restrains the power of the owners’ corporation to pass certain types of by-laws, the owners’ corporation is still permitted to impose reasonable conditions.

Do I have to revise other by-laws in my scheme?

Yes. The Cooper case is very wide ranging. It prevents an owners’ corporation from passing any by-law that imposes conditions on a lot owner’s use and enjoyment of their lot, if the conditions do not materially benefit other lot owners.

For example, this may mean that strata buildings that have imposed a blanket ban on smoking may have to think about amending the smoking by-law. According to the reasoning in Cooper, a lot owner should still be permitted to smoke within their lot, because it is unlikely that the smoke will drift to another owner’s lot or the common property. However, the owners’ corporation can still have a by-law that prevents a lot owner from smoking on the common property or even their balcony, because the smoke is likely to drift to another owner’s lot from the balcony.

Revise your by-laws now

It is essential that all owners corporations start the process of revising all their by-laws, including those that impose a blanket prohibition on pets.

Get in touch with us to start the review process now on 02 9199 8597 or email wehelp@jfmandreyev.com.au