Living in a strata scheme requires owners and tenants to follow rules known as by-laws. These by-laws include how residents should behave and help them understand their rights, and can cover dealing with pets in strata.

By-law schemes

Owners Corporations can either register their own by-laws, adopt Schedule 1 By-laws if registered prior to 1 July 1997, or the Model By-laws if registered on or after 1 July 1997. The Schedule 1 By-laws permit pets in your lot if you have obtained prior consent of the Owners Corporation. This consent cannot be unreasonably withheld.

By-laws in relation to pets in strata

Prior to the case of Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19 (‘Yardy’), By-law 16 of the Model By-laws detailed 3 options for the keeping of pets:

  1. You must obtain the prior consent of the Owners Corporation, which cannot be unreasonably withheld;
  2. You must obtain the prior consent of the Owners Corporation providing the animal is not a cat, a small dog, small caged bird or fish in a secure aquarium. If this animal is a cat, small dog or small caged bird, you must notify the Owners Corporation the animal is being kept on the Lot, keep the animal within the Lot, carry the animal when it is on Common Property and necessary action to clean areas of the Lot or Common Property that have been soiled by the animal; or
  3. Only guide dogs or hearing dogs are permitted.

How strong are these by-laws?

However, in Yardy, the NSW Civil and Administrative Tribunal found that the by-law that prohibited pets (By-law 16) is invalid because it is “harsh, unconscionable and oppressive” in breach of s 139(1) of the Strata Schemes Management Act 2015. The NSW Civil and Administrative Tribunal (‘the Tribunal) found that By-law 16 did not allow Owners Corporations to consider individual circumstances, precluded the exercise of ‘a right of habitation which…is part of contemporary community standards’ and only operated in the interests of lot owners who were opposed to pet ownership.

In another caseRoden v The Owners-Strata Plan No 55773 [2019] NSWCATCD 61, concerning the Elan complex in Kings Cross, applicants successfully had the Owners Corporation ban on pets overturned. In November 2019, the Tribunal also ruled in The Owners – Strata Plan No. 58068 v/ats Cooper [2019] NSWCATCD that an owner in the Horizon apartment block in Darlinghurst could keep her pet.

A more pet-friendly outlook

Overall, the Tribunal seems to be adopting a largely pet-friendly policy for pets in strata. This is important to keep in mind when creating or reviewing your own by-laws, as by-laws are only binding until such time that the Tribunal overturns it and declare the by-law ‘harsh, unconscionable and oppressive’.

If you require assistance with your by-laws or have questions regarding your strata scheme, call us on (02) 9199 8597 or email us at front.desk@jfmlaw.com.au.