NSW: Q&A Keeping Pets in a Strata Building

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What are the new pet rules for strata? Pets still aren’t automatically allowed in strata schemes. Find out why you still need approval.

UPDATE April 2021: Despite the much anticipated “pet-friendly” amendments to the new strata legislation, animals are still not automatically permitted in strata schemes even if they are kept wholly within the boundaries of an individual’s apartment.

To determine what the keeping of animals position and pet rules for strata is in relation to any particular scheme you must refer to all the by-laws registered on the certificate of title for the common property.

UPDATE May 2020: Pets Now Allowed in Sydney Apartments Two of Sydney’s biggest apartment towers have won their battle to ban owners’ pets from their buildings in a verdict that will have far-reaching repercussions for NSW strata residents. Domain

Table of Contents:

• QUESTION: Why should owners who select and no pets by law have their decision overturned?
• QUESTION: Would it be okay if a NSW pet bylaw required people to get approval from the Strata Committee before they permitted an animal in the building?
• QUESTION: Can a “no pets” bylaw be valid on the grounds of resident’s allergies? Can the Owners Corporation demand medical evidence to prove the allergy actually exists?
• QUESTION: Our owners corporation are repealing the current by-law from requiring written permission to keep pets to Prohibiting the Keeping of Animals.
• QUESTION: Dogs at our complex yap for hours. The noise is driving me crazy but I’m not sure what I can do. Can you help?
• QUESTION: We have a no pets bylaw. We’ve seen NCAT will invalidate Strata bylaws that blanket ban pets. Will the current bylaw stand until another is voted on and registered?
• QUESTION: I’m in the process of purchasing an apartment. Can I get assurance pet approval will be granted before I buy the property?
• QUESTION: Are bylaws allowed to specifically prohibit ownership of dogs whilst cats and other animals are subject to approval?
• QUESTION: We are about to sign a rental agreement for an apartment. Other residents have pets but our application for 2 dogs has been rejected by the owners corporation. Is this legal?
• QUESTION: Does pet approval come with the apartment? If someone else moves into the apartment are they automatically approved to have two dogs if the previous person had two dogs?
• QUESTION: Due to complaints from one neighbour, our strata is trying to take us to court over our small dog. Other neighbours confirm the dog is fine. Do I have any right to keep the dog and not get taken to court?
• QUESTION: The previous lot owner had approval for a dog. I’ve just moved in. Does the pet approval apply to me or do I need to submit a new request for approval so I can have my dog at the unit?
• QUESTION: I have 3 dogs in a 2 bedroom apartment. I only have approval for one pet. I’ve received a letter about one of the dogs barking and told to remove one of the dogs. What can I do?
• QUESTION: The Strata Committee plans to rescind our Keeping of Pets bylaw. Do 75% of owners need to agree? Can an owner challenge the rescinding of Pets bylaw?

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Question: Why should owners who select and no pets by law have their decision overturned?

Answer: Even though you might want something, what you want in the eyes of the law is unreasonable, and therefore you just can’t have it.

This is a really good question and it was dealt with by the court in the Cooper case. There are many people out there who think they should be masters of their own destiny. So they should be able to decide whether their building will allow pets or be pet free.

But what you have to realise is that there are laws that place constraints on the ability of an owners corporation to make bylaws, including pets bylaws. What the Court has said is that those constraints make it impossible to have bylaws that impose blanket bans on pets, and that in the words of the court, a democratic will of the majority of owners doesn’t convert a democracy into a majoritarian dictatorship. So the court was sending a message to owners in strata land in New South Wales, that even though you might want something, what you want in the eyes of the law is unreasonable, and therefore you just can’t have it.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: [email protected]
P: 02 9562 1266

This post appears in Strata News #467.

Question: Would it be okay if a NSW pet bylaw required people to get approval from the Strata Committee before they permitted an animal in the building?

Would it be okay if a bylaw required people to get approval from the Strata Committee before they permitted an animal in the building? This
would give the Strata Committee the ability to vet the animal first to try to
decide if it would be a nuisance and not, say, a prohibited breed of
dangerous dog like a bulldog etc.

Answer: Yes this is possible and indeed this is now the recommended pets by-law for most strata buildings.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: [email protected]
P: 02 9562 1266

This post appears in Strata News #464.

Question: Can a “no pets” bylaw be valid on the grounds of resident’s allergies? Can the Owners Corporation demand medical evidence to prove the allergy actually exists?

When our owners corporation has discussed allowing pets in our 60 lot strata building, two of the owners claimed to have an allergy to pet fur. Their claims have put an end to the discussion.

Can a “no pets” bylaw be valid on the grounds of resident’s allergies? Can the Owners Corporation demand medical evidence to prove the allergy actually exists?

Answer: A “no pets” by-law cannot be justified because some residents have pet allergies.

A “no pets” by-law cannot be justified because some residents have pet allergies. The presence of some residents with per allergies might provide a good reason for an owners corporation to reject an application for permission to keep a pet but this would depend on the specific circumstances.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: [email protected]
P: 02 9562 1266

This post appears in Strata News #461.

Question: Our owners corporation are repealing the current by-law from requiring written permission to keep pets to Prohibiting the Keeping of Animals.

We just received the AGM motions for this year’s meeting and surprisingly the owners corporation are repealing the current by-law from requiring written permission to keep pets to the below:

By Law XX – Prohibiting the Keeping of Animals:

An owner or occupier of a lot must not bring or keep any animal on the lot or the common property.

An owner or occupier of a lot must not permit any person including any invitee of the owner or occupier to bring or keep an animal on the lot of the common property.

This by-law does not prohibit or restrict the keeping on a lot of assistance animal used by an owner or occupier of the lot as an assistance animal or the use of an assistance animal for that purposes by a person on a lot or common property.

Answer: The proposed pets by-law is not likely to be enforceable due a recent case which says that a by-law banning pets is harsh and unenforceable.

If the building is in NSW, the proposed pets by-law that will be considered at the AGM is not likely to be enforceable due to the Court of Appeal decision in the Cooper case which says that a by-law banning pets is harsh and unenforceable.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: [email protected]
P: 02 9562 1266

This post appears in the March 2021 edition of The NSW Strata Magazine.

Question: Dogs at our complex yap for hours. The noise is driving me crazy but I’m not sure what I can do. Can you help?

I live in a very large Strata unit complex. There is an overload of dogs here – almost like a Canine Hotel – but all in all they are well mannered, however, there are that sometimes bark and yap for up to 5 hours at a time.

I find it to be very stressful but I am not sure what I can do. I have emailed the building manager on several occasions and I plan to speak with him in person. I am sure he has a large workload but these barking dogs are driving me crazy.

We also have problems with residents who don’t clean up after their dogs and the dogs that go to the toilet on patios. Not exactly hygienic for anyone in the building.

Answer: Should you wish to take the matter further, you could attempt mediation and then make an Application for Orders through NCAT.

Usually the strata by-laws would regulate matters such as odours and endless barking and clearly, the barking is causing you a nuisance.

Should you wish to take the matter further, you could attempt mediation and then make an Application for Orders through NCAT:

158 Order for removal of an animal permitted under by-laws

1. The Tribunal may, on application by an interested person, make an order against a person who is keeping an animal on a lot or common property in accordance with the by-laws for a strata scheme, if the Tribunal considers that the animal 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.
2. The Tribunal may order that the person:
1. cause the animal to be removed from the parcel within a specified time, and be kept away from the parcel, or
2. within a time specified in the order, take such action as, in the opinion of the Tribunal, will terminate the nuisance or hazard or unreasonable interference.

Alternatively, you could speak to the neighbours (they might not be aware) or make contact with your local council for advice and which may issue a nuisance order (and attracts penalties for non-compliance), or, you could seek a noise abatement order from your local court.

We trust the above has addressed your query.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #450.

Question: We have a no pets bylaw. We’ve seen NCAT will invalidate Strata bylaws that blanket ban pets. Will the current bylaw stand until another is voted on and registered?

Answer: If an owners corporation applies to NCAT to enforce a “no pets” by-law through an order requiring a pet to be removed, NCAT will likely dismiss the application.

The recent Court of Appeal decision means that a by-law prohibiting pets is not likely to be valid. This means if an owners corporation applies to NCAT to enforce a “no pets” by-law through an order requiring a pet to be removed, NCAT will likely dismiss the application.

The sensible course is for any owners corporation that has a “no pets” by-law to replace the by-law with a new by-law that either restrict the keeping of pets or permits pets. Any new by-law should include reasonable conditions regulating the keeping of pets.

Happy to assist if needed.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: [email protected]
P: 02 9562 1266

Disclaimer: The information contained in this article is provided for your personal information only. It is not meant to be legal or professional advice nor should it be used as a substitute for such advice. You should seek legal advice for your specific circumstances before relying on any information herein. Contact JS Mueller & Co for any required legal assistance.

This post appears in Strata News #424.

Question: I’m in the process of purchasing an apartment. Can I get assurance pet approval will be granted before I buy the property?

I’m looking to buy an apartment. Whenever I ask if the building allows pets, I get told that strata has to grant permission once I’ve moved in. I already have pets in my rental property and can’t risk buying somewhere and then being told I can’t have them. Any advice?

Answer: Whilst some strata committees are willing to consider applications for pets prior to purchase, in reality, most pet applications are not considered until after settlement.

Whilst some strata committees are willing to consider applications for pets prior to purchase, in reality, most pet applications are not considered until after settlement.

As a result, the best thing you can do is your due diligence.

First, when obtaining the contract for sale, get your solicitor to review the by-laws to see whether or not the by-laws allow pets and if so, what are the requirements for keeping pets and if there are any restrictions or limitations i.e. size, breed, species etc.

Secondly, make enquiries with the strata manager (and if possible a member of the committee) if the building is actually pet friendly, if there are other pets in the building and if the pet application is likely to be approved. This is because there are some buildings that have by-laws allowing pets, yet have ‘no pets’ policies and refuse all applications for pets.

David Bannerman
Bannermans Lawyers
E: [email protected]
T: 02 9929 0226

This post appears in Strata News #420.

Question: Are bylaws allowed to specifically prohibit ownership of dogs whilst cats and other animals are subject to approval?

The bylaws in my building require pets (except for fish) to be approved by the strata committee. However there is a specific clause which prohibits dogs (with the exception of guidance & hearing assistance dogs).

Are the bylaws allowed to specifically prohibit ownership of only dogs whilst cats and other animals are subject to approval?

Answer: We have seen such by-laws and in our experience they arose due to issues the strata committees had with existing dogs

We have seen such by-laws and in our experience they arose due to issues the strata committees had with existing dogs, in particular barking and soiling the common property.

Under the 2015 strata legislation, by-laws may not be harsh, unconscionable or oppressive and such a by-law may be invalidated by the Tribunal on application, noting also that the owners corporation/by-law cannot prohibit a disability animal (as referred to in section 9 of the Disability Discrimination Act 1992).

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in the October 2020 edition of The NSW Strata Magazine.

Question: We are about to sign a rental agreement for an apartment. Other residents have pets, but our owners corporation has rejected our application for 2 dogs. Is this legal?

My application for a rental apartment was successful. I paid the deposit, the bond and was about to sign the lease. The apartment building is pet friendly, the current tenants have a dog and a cat and another apartment have 2 dogs living with them.

I received a phone call today saying that owners corporation had rejected our application for 2 dogs to reside in the apartment. The other people with 2 dogs were allowed as one of the dogs was old and terminally ill. We are in the EXACT same situation with one of our dogs dying from cancer but they still rejected our application.

How is this legal?

We had to cancel a holiday we had booked for 1 year as the move in date and holiday clashed.

Anyone know if we can challenge this decision?

Answer: You need consent from both your landlord and the owners corporation to keep a dog in the building.

Irrespective if:

1. the building is pet friendly;
2. there are other pets in the building; or
3. the by-laws allow for pets,

you need consent from both your landlord and the owners corporation to keep a dog in the building.

From your email below, it appears that the owners corporation has refused your pet application. As a result, there may be grounds under the by-law to challenge this decision.

It is hard to comment further without seeing the by-laws in question, however we specialise in disputes of this nature and could assist if you would like for us to provide a fee proposal.

Feel free to reach out on 02 9929 0226.

Matthew Jenkins
Bannermans Lawyers
E: [email protected]
T: 02 9929 0226

This post appears in Strata News #404.

Question: Does pet approval come with the apartment? If someone else moves into the apartment are they automatically approved to have two dogs if the previous person had two dogs?

Does pet approval come with the apartment? If someone else moves into the apartment are they automatically approved to have two dogs if the previous person had two dogs?

Then another approval question, that’s been around is ‘if I had approval for a dog and the dog passes away, and I get another dog, do I have to get approval for the new dog or if I already got approval for a dog?

Answer: Normally the approval is with the animal, not with the apartment

Normally it’s with the animal. Approval is for for the individual applicant.

Conditions around keeping pets should be uniform. The chairperson or the treasurer shouldn’t get to have five dogs and everyone else can only have one. It’s around governance. You must have rules for everyone so that its really clear that you know what the criteria is and you know what you need to do if things start going awry.

Rod Smith
The Strata Collective
E: [email protected]
T: 02 9879 3547

This post appears in Strata News #390.

Question: Due to complaints from one neighbour, our strata is trying to take us to court over our small dog. Other neighbours confirm the dog is fine. Do I have any right to keep the dog and not get taken to court?

Our strata is currently trying to take us to court over our small dog. We own the apartment and the dog is under 10kgs.

There have been complaints from one apartment underneath us. Other neighbours have stated that the dog doesn’t bother them.

Do I have any right to keep the dog and not get taken to court?

Answer: What you need to do first is check the by-laws that apply to your scheme.

What you need to do first is check the by-laws applicable to your scheme. That will determine whether or not you may keep your dog at your apartment. Even the most pet-friendly schemes require you to make application for your dog before you bring it on to the property and it seems you did not seek approval first. Also, even if you live in a pet-friendly scheme that does not mean your dog is allowed to cause a nuisance (by barking).

As for stopping the court action, you could remove the dog from the premises (though this step is unlikely to be a desirable one).

If the court action proceeds, you should seek advice from a strata lawyer to establish the pet position of your building and advise you as to whether or not the by-law is valid and enforceable.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #361.

Question: The previous lot owner had approval for a dog. I’ve just moved in. Does the pet approval apply to me or do I need to submit a new request for approval so I can have my dog at the unit?

I am the new lot owner of a strata property. The previous owner had approval for a dog. Does the approval still apply now I am the new owner?

The strata manager is telling me:

• I do not have approval for my dog
• the previous pet approval applied only to the last lot owner
• any new owners need to submit a request for approval.

Is this the standard ruling?

Answer: Generally, approval for a dog is dog specific and you will need to apply for approval to have your dog at the unit.

Depending on the by-laws applicable to your scheme, as a general proposition, approval for a dog is dog specific and does not attach to the lot per see.

So, the strata manager is likely correct and we recommend you comply with your by-laws and make an application in accordance with same.

On the upside, the fact that a dog previously resided there may assist as an argument that you should be permitted to have one too.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #336.

Question: I have 3 dogs in a 2 bedroom apartment. I only have approval for one pet. I’ve received a letter about one of the dogs barking and told to remove one of the dogs. What can I do?

I live in a 2 bedroom apartment with 3 dogs. I recently received a complaint from the owners corporation regarding barking dogs.

Apparently one of my dogs would be extremely excited every time we walk past the unit to go for our daily walk. The other 2 hardly make any noise.

The letter states that the Strata committee would only allow 2 animals and insists I remove one of my dogs from the apartment. I only have approval for one dog. I didn’t know I needed approval for each pet.

What can I do? Can I get approval to keep all 3 of my furbabies in the unit? I have till the end of the month.

Answer: Other occupants should be able to enjoy their property without the impacted of noise caused by one owner / occupant.

This could be a difficult proposition. I think that the Owners Corporation would only allow 3 dogs if there was a history of good behaviour from the dogs in the past. The fact that they have given you until the end of the month suggests to me that they have concerns with the noise.

Can I suggest you speak to your vet about strategies to stop your dog barking? You can communicate this to your strata manager. As you start to put these strategies in place, your strata may agree to an extension of the one month deadline and review your application at a later date.

That being said, many people including me would consider keeping three dogs in a 2 bedroom apartment to be too many dogs for the space. It is important as a strata manager to make sure that the rest of the strata occupants enjoyment of their property is not adversely impacted by the noise of one owner / occupant.

Rod Smith
The Strata Collective
E: [email protected]
T: 02 9879 3547

This article is for reference purposes only and is not intended to be a comprehensive review of the developments in the law and practice or to cover all aspect of the subject matter. It does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.

This post on appears in Strata News #351.

Question: The Strata Committee plans to rescind our Keeping of Pets bylaw. Do 75% of owners need to agree? Can an owner challenge the rescinding of Pets bylaw?

Our Strata Committee is planning on placing a motion at our next AGM to rescind the Keeping of Pets bylaw. Currently, we are allowed to keep either 1 bird, 1 fish, 1 cat or 1 small dog under 10kgs.

This motion is in reaction to a tenant breaking this bylaw. This, I believe is the only breach that has occurred in our building in the last 5 years.

What are the steps they must follow in order for this to occur? Is it true they would need 75% of owners agreeing to the change? Can an owner challenge the rescinding of the by-law?

Answer: A special resolution would need to be passed to change the existing pet by-law..

Procedure to change by-law

The procedure for changing a by-law is in section 141 of the Strata Schemes Management Act 2015 (SSMA).

A special resolution would need to be passed to change the existing pet by-law. A special resolution will be passed at the meeting if not more than 25% of the value of the votes are cast against the resolution. The value of a vote is the unit entitlement amount.

Removal of animals under existing by-law

If the owners corporation wishes to remove an animal which is not permitted under the existing by-law, an application can be made to the Tribunal under section 156 of the SSMA. If an animal is being kept in accordance with the existing by-law but the animal is causing a nuisance or hazard, or unreasonably interfering with the use or enjoyment of another lot or common property, an application can be made to the Tribunal for an order to remove the animal under section 158 of the SSMA.

Ban on pets

If the proposal is to remove the existing by-law and replace it with a by-law which completely prohibits pets, you can put forward an argument at the AGM that such a by-law would be invalid pursuant to s139 of the SSMA. Section 139 of the SSMA provides that a by-law must not be harsh, unconscionable or oppressive.

Two recent Tribunal decisions have found that an outright prohibition on pets is invalid as being harsh, unconscionable and oppressive. See Yardy v Owners Corporation SP 57237 (decided on 19 February 2018) and McCormick & McGinness v The Owners – Strata Plan No. 2371 (decided 9 October 2019).

Seeking order to invalidate resolution

If any procedural matters at the AGM have not been complied with (for example incorrect voting or non-compliance with meeting notice requirements) you can apply to the Tribunal for an order invalidating the resolution (section 24 of the SSMA). The Tribunal may refuse to make an order if the failure the comply with the SSMA or regulations did not adversely affect any person or if the Tribunal considers the resolution would have been passed despite the failure of compliance.

If a by-law is passed prohibiting pets, you could also apply to the Tribunal under section 150
of the SSMA for an order invalidating the by-law on the basis it is harsh, unconscionable or oppressive.

Have a question about rescinding the keeping of pets bylaw or something to add to the article? Leave a comment below.

Emma Smythies
Special Counsel
Bugden Allen Lawyers
E: [email protected]
M: 0412 046 966

This article does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.

This post appears in Strata News #333.

Have a question about keeping pets in strata buildings or something to add to the article? Leave a comment below.

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Read next:

• NSW: Q&A ‘No Animals Allowed’ – not even a companion animal
• NSW: Confirmed! The Tribunal will overrule strata pet bans

For more information on pet rules for strata or matters concerning more general strata information in NSW, visit our Strata Pets Living in Apartments and visit our NSW Strata Legislation

Looking for strata information concerning your state? For state-specific strata information, take a look here.

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