Are you pro-pets or against them? Maybe this issue doesn’t boil-over when you’re living in a detached home. But when it comes to communal living in a strata building – this is a hot topic on which people hold very strong views.

After all this time, who would’ve thought that the legal position on pets could still be so controversial? Pets in communal living have continued to be a constant source of disputes between lot owners and their Owners Corporation in strata schemes. Whether people have the right to keep pets in a strata building has been fought over on frequent occasions in the NSW Civil and Administrative Tribunal.

Pets and strata building

The Owners Corporation has the right to pass a by-law that deals with the keeping of pets within the building, i.e. to allow or disallow pets. Some owners corporations have elected to pass a by-law that prohibits lot owners from keeping pets in the building, essentially resulting in a ‘blanket ban’ on pets. This type of by-law has been described as a ‘blunt instrument’ that is harsh and oppressive on lot owners who are ‘pro-pets’.

The previous legal position

An aggrieved ‘pet owning’ lot owner has the right to approach the NSW Civil and Administrative Tribunal (The Tribunal) to seek an order that a by-law is invalid because it is ‘harsh, oppressive and unconscionable’. If the Tribunal rules in favour of the lot owner, this means that the by-law is declared invalid, and is no longer binding on lot owners.

The Tribunal has previously determined that a by-law that completely prohibits pets is ‘harsh, oppressive and unconscionable’ and accordingly, a ‘no pets’ by-law is unenforceable and invalid.  This legal position was initially determined in Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19 and reaffirmed in Roden v Owners SP 55773 NSWCATCD 18. Read our article here for further details.

The new legal position on pets

But the fight against pets carried on… On 27 May 2020, in The Owners – Strata Plan No 58068 v Cooper [2020] NSWCATAP 96 the Appeal Panel of the Tribunal held that the previous decision of the Tribunal in The Owners – Strata Plan No 58068 v Cooper [2019] NSWCATCD 62 was in error and allowed the appeal. As a result of the appeal, the Coopers were ordered to remove their pet dog from the building, and the by-law prohibiting pets was ruled as valid.

Points considered by the Appeal Panel

In allowing the appeal, the Tribunal relied on the following submissions:

  • First, the language of the Strata Schemes Management Act 2015 (NSW) does not require a strata scheme to consider community interests, and whether the making of a certain by-law reflects the interests of community at large. Accordingly, whether there is a general community interest that indicates a ‘pro-pet’ attitude, is an irrelevant consideration in determining whether a by-law is valid, harsh or oppressive. Even though there is a general community attitude that pets are a positive addition to a household, the fact that a by-law does not reflect this standard does not render a by-law invalid.
  • The Appeal Panel also held that a lot owner assumes the responsibilities and obligations found in the by-laws of a strata scheme upon purchasing their lot. Again, the fact that the by-law does not reflect community standards, does not absolve a lot owner from not complying with their obligations under the by-law.
  • The Appeal Panel also rejected the Appellant’s submission that a by-law that does not allow the keeping of ‘small animals’ should be considered as a harsh, unconscionable and oppressive by-law. In rejecting this submission, the panel determined that whether an animal is ‘inoffensive’ or ‘offensive’ is not a factor that indicates that a by-law is harsh, oppressive or unconscionable.

Again, the Panel placed weight on the fact that a term and condition of purchasing a strata title apartment is complying with the existing by-laws that are registered on the common property title of the Owners Corporation.

This is an important reminder that prior to purchasing an apartment in a strata complex, you should conduct a thorough search of the books and records of the owners corporation. The expectation is that upon settlement, you are aware and will comply with the registered by-laws.

So, what is the legal position on pets?

A ‘blunt’ by-law universally banning pets will no longer be considered harsh, oppressive or unconscionable. The latest decision is different to the previous positions historically adopted by the Tribunal in resolving pet disputes. That is, the Tribunal is now unlikely to rule that a by-law prohibiting pets is invalid. Put another way, by-laws banning pets are now enforceable.

For assistance in drafting (or re-drafting) by-laws, or enforcing their content, contact Mariam Chalak on 0410 914 128 for a no obligation chat.

If you would rather get in contact through email, send your question through to Mariam at mariam.chalak@jfmlaw.com.au.