This updates on ‘no pets’ by-laws in NSW strata has been supplied by Bannermans Lawyers.
The issue of pets in strata schemes has always been a controversial and fiercely contested issue.
Pets are often viewed as a member of the family by some, or conversely, an unpleasant annoyance by others.
Benefits can include increased property values and rents associated with pet friendly buildings together with health benefits associated with pet ownership. Downsides can include disharmony arising from disputes over pet ownership and increased cleaning and maintenance costs for common property areas.
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There have been a few recent decisions where the Tribunal has invalidated ‘no pets’ by-laws that provided a blanket ban on pets in the building such as Yardy v Owners SP5723 [2018] NSWCATCD19 and Roden v Owners SP 55773 NSWCATCD 18.
On 21 November 2019, the Tribunal handed down the decision in The Owners – Strata Plan No. 58068 v/ats Cooper [2019] NSWCATCD (“Cooper”) where the Tribunal considered a no-pets by-law in the high profile Horizon building in Darlinghurst.
In the case, the owners corporation sought orders for the removal of a Miniature Schnauzer called Angus, a thirteen year old pup who was well trained and had lived in strata the majority of his life. The owners corporation also sought a penalty against Angus’ owner for a breach of a notice to comply as a result of keeping the dog in the strata scheme.
Angus’ owner then cross claimed against the owners corporation seeking that the ‘no pets’ by-law was invalidated for being harsh, oppressive and unconscionable pursuant to sections 139(1) and 150 of the Strata Schemes Management Act 2015.
The Tribunal considered the evidence filed by the parties and held at paragraph 115 that Angus’ owner demonstrated that based on his personality, behaviour and the type of pet he is, that it was an:
“unpleasant or ungentle in action or effect (“harsh”), unjust or unreasonably excessive or not in accordance with what is just and reasonable (“unconscionable”), and unjustly harsh or burdensome in exercise of power (“oppressive”), simply to ban and seek to expel his type of pet… under a blanket prohibition rather than rely upon the amenity and conduct by-laws to regulate custody and management under the stewardship of owners…”
The Tribunal subsequently held the ‘no pets’ by-law was harsh, oppressive and unconscionable pursuant to section 139(1) of the Act and ordered that the owners corporation remove it from the registered by-laws of the strata scheme. The Tribunal also dismissed the penalty application.
Interestingly, the Tribunal held it may be possible to have a ‘no pets’ by-law in certain objective circumstances like in:
- A very small scheme;
- A scheme with a high number of absentee landlord owners and has a high tenant turnover (e.g. a scheme that permits short term letting through platforms such as Airbnb); and
- An owner buying into a scheme with notice of the ‘no pets’ by-law and the owner confirms in writing of notice of the ‘no pets’ by-law and even possibly provides an undertaking not to challenge the by-law.
So what does the future hold for pets in strata?
The decision in Cooper is the longest and most comprehensive decision on pets by-laws to date. It also somewhat moved away from the previous line of cases that the Tribunal has decided on pets.
The decisions on pet by-laws in the Tribunal indicate that the Tribunal will most likely invalidate a ‘no pets’ by-law. Therefore, as a general comment, most strata schemes would be better served in having a by-law that allows pets subject to certain conditions and criteria. However, the decision in Cooper illustrates the possibility of a ‘no pets’ by-law being upheld in certain rare circumstances.
Our experience with pets disputes is that they are always divisive, extremely personal and fiercely contested.
In light of the above, if you are having questions about pet by-laws or concerns about pets in your strata scheme, we have considerable experience and expertise in this area and can help.
Have a question about ‘no pets’ by-laws in NSW strata or something to add to the article? Leave a comment below.
Read next:
- NSW: Q&A Keeping Pets in Strata Units. How Many Are Too Many?
- NSW: Can I keep pets in a strata building?
David Bannerman
Bannermans Lawyers
T: 02 9929 0226
E: [email protected]
The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.
This post appears in Strata News #316.
This article has been republished with permission from the author and first appeared on the Bannermans Lawyers website.
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Hi,
The Strata Manager of our building has made it clear that, “Dogs are not permitted but you may apply for another animal. They will determine whether the application is approved or not”.
Below is what its detailed in the Strata Schemes Management document.
1. An owner or occupier of a lot must not, without approval in writing of the owners corporation, keep any animal on the lot or the common property.
2. The owner corporation must not unreasonably withhold its approval of the keeping of an animal on the lot of the common property
Then there is a special by law that states:
i) Subject to Section (49)4 of the Act, an owner or occupier shall not bring or keep or permit a dog to be brought or kept upon or within a lot of the common property.
By not permitting a dog would this not be considered “harsh”, “unconscionable” and “oppressive” to simply not consider at all an application for a dog. Therefore, if you like pets you cant like a dog because they are not welcomed.
Are there grounds to challenge this given no consideration is given to the dog breed etc etc.
I am the owner of a garden flat in Sydney. I have no pets but am occasionally visited by my neighbour and friend who has a very well behaved dog (a Pets as Therapy dog). The dog is unleashed when she enters the building’s common property and we occasionally use the common garden area to sit and chat. We have been told by another lot owner in the building that the dog must be on the leash at all times.
As its a visiting dog and doesn’t have the approval of the Owner’s Corporation can they, and how can they, enforce the demand that the dog stays on the leash for the time she is visiting?
Hi Sue
We have received this response from Bannermans Lawyers:
It is hard to comment without seeing the building’s specific by-laws, however, it is good practice to keep the dog on the leash whilst on the common property. Typically, even pet friendly buildings require dogs to be kept on a leash or restrained in a carrier whilst they are being transported through the common property.
Whilst it would be difficult for the owners corporation to get an order against you as an invitee, they could get an order against your friend who lives in the building.
It sounds like keeping the dog on the leash would minimise the possibility of a dispute with other owners in the building.
I live in and own an apartment that is also a holiday destination with about sixty apartments.
When I was looking at buying, there was and still is a no dogs rule.
I do not have a dog, but my daughter who lives three and a half hours by car away cannot visit me. She also lives alone in a unit block which allows dogs. Her little toy poodle is her daughter, her baby. I have never been a dog person, but this little dog changed my mind. She is very clean. She has showers and is scented all over. She is well trained and rarely barks. Very quiet.
When purchasing my apartment, I was told by the real estate and conveyancer just take the dog up to your apartment. We haven’t done this due to the fine for breaching a by law.
Tourists come and go here, and they are loud, and obnoxious. Late nights, swearing etc. Children scream and cry all day long. So much worse than having a dog bark occasionally.
Smoking is also banned, yet I frequently smell cigarette smoke from my balcony. The other night I smelt marijuana.
On occasion I hear a dog bark close by, and then I’ve seen a cat walk along the window sill of another permanent residents’ apartment.
What I am trying to say, is that I am fearful of being fined, or even kicked out.
That people get away with breaking the by-laws and nothing is said or done. (no, I haven’t reported any event)
I believe the no dog by law should be done away with. It’s old fashioned, harsh, unconscionable and oppressive.
I wouldn’t like a German Shepherd living next door, but a small dog wouldn’t worry me.
I told my daughter perhaps I should get a monkey…………. There are no by-laws stating I cannot have a monkey. lol… Even if I wanted a dog, I wouldn’t get one living here although everyone tells me I should get a dog that the laws have changed. Which they have not.
It seems a bylaw is there for some people and others to disregard.
Each building should be free to make their own by-laws without interference from government. If the owners decide that pets are OK, so be it. If they do not want pets, OK.
When prospective owners and tenants are looking for new digs, there are always compromises. One place may have a lift or a pool, but is a long way from transport. Another may have pets but no parking.
If having a pet is more important than say a place with a pool, you may wish to accept that compromise.
This really needs to be settled by the individual strata committees. Jus as some residents want a pet loving building, other residents want a no pet building. Forcing buildings to accept pets will piss off a lot of people who may have decided that they want to live in a no pet building. Leave it to the owners.
I disagree completely. A home is a home and a pet is part of the home/family.
What next – no babies – no BBQ”s – no ball games on common property gardens? – no thongs in public? …..strata only exists to manage maintenance of common property and attempt to harmonise close living of residents. It is not there to interfere with individual’s lives within their own property. Many pet owners only have their pets for company, and this example of wanting to evict a 13 year old dog is quite pathetic and shameful on the part of the committee seeking to do that.
Unfortunately some power hungry strata committees take the idea of “rule enforcement” way too far, and are missing the point of their role in the first place.
I applaud the government for intervening as this newsletter shows there are too many idiots in charge of strata complexes trying to over-rule and destroy others’ lives. To them I say just mind your own business or go buy a house in the country!
I thoroughly agree, annoyed pet lover. Power hungry strata committees take the idea of rule enforcement way too far etc.
Well said.
I agree. Your home, is your home, and as long as the pet does not disturb others, then there is no reason, why you cannot have a pet. Unfortunately many complexes have at least one person, who makes it their business to create problems for others, and even a budgie is to much for them, but they forget each unit is a home for a family or a individual, and despite their belief they own the building, they don’t and never will. They are chronic pests, and should be treated as such.
I agree
I would never ask others to keep my pet in their apartment
And in the same breath they should never tell me I can’t keep a pet in my apartment
It is my HOME my place my private home I own it
It is common property that should concern they
If a pet is on a lead and no mess left behind I see no problem
Pets are the greatest company
They improve your health
Some hotels accept pets we need to move with the times pets are part of the family
No building should have a right to make laws that effect your health
Just hearing a doctor’s report if you want to live longer get a pet
Great for mental health companionship and makes people more social
No body should have the right to deny you these right as a human
The body Corp should and can have the right to limited pets on common property and their behaviour
And rules about mess being cleaned and cleaned properly
NOBODY should have the right to deny you ever chance to live longer
Would words such as harsh, unconscionable and oppressive apply where cats are required to be held inside the Lot or enclosed exterior yard and not allowed to roam freely? Being enclosed may not give them any physical or visual freedom or enjoyment of the external environment.
Hi michael
We have received the following response from Bannermans Lawyers:
It is hard to comment without seeing the owners corporation’s by-laws.
Generally, with cats (as with any animals in strata) they are required to be kept within the unit. If there is a garden space or balcony that is part of the unit, then pets are usually also allowed to use this area.
It would certainly be unusual for any pet to be allowed to roam freely on the common property.
I do not think that it is likely that the words of ‘harsh, unconscionable or oppressive’ would extend to cats being able from being allowed to roam free on the common property. Accordingly, my suggestion would be to keep the cat inside your unit/balcony.
Based on the Cooper Case, it seems clear that a ‘No Pet By Law’ will be invalidated. With that precedent now entrenched, would it be reasonable for all Strata Plan to have a Special By-Law implemented that covers issues such as:
– A maximum number of pets to be allowed by a Lot Owner or Tenant;
– The type of pets. Obviously Cooper’s Case involved a canine. What if the Lot Owner or Tenant has a parrot or parrots which as we all know have a tendency to squawk and shriek quite loudly at any given time from sunrise through to sunset. Wouldn’t that constitute a breach of the By Law provision entailing quiet use and enjoyment of the property? It would seem a direct collision of two By-Laws namely, of having pets and causing noise nuisance;
– Excrement on Common Property. Regardless of the subject canine in the Cooper Case, dogs do need to go and supposing the dog defecates on Common Property. Is that considered a breach? If so, who will clean it up? And would it be reasonable to have a ‘Pet Bond’ deposited by the Lot Owner or Tenant which will be held in Trust by the Owners Corporation? What amount would you consider to be reasonable?
Hi CJ
We’ve received the following response from Bannermans Lawyers:
We generally advise owners corporations that the best approach is to have a by-law that allows pets with the consent of the owners corporation.
In that by-law, you have conditions for the approval and keeping of the pet such as in relation to size, weight, numbers, breed and what happens if the pet is disturbing other owners i.e. through noise or defecating on the common property etc.
I have never heard of a pet bond, however this could be a possibility that an owners corporation could consider.
ADMIN: We have discussed Pet Bonds here: NSW: Q&A Owners Corporation Requests a Pet Bond Paid to Strata
The “An owner buying into a scheme with notice of the ‘no pets’ by-law and the owner confirms in writing of notice of the ‘no pets’ by-law and even possibly provides an undertaking not to challenge the by-law” crack from the Member is of some concern because such an undertaking would most likely not be anything that was enforceable.
It would be a contract between the seller and the buyer, not enforceable by the OC.
The OC can not force a seller to have such a condition as a condition of sale.
How such an undertaking would operate to protect a by-law would be interesting.
Also NCAT Members seem to be going down a path whereby they feel notice of a by-law makes everything about the by-law fine.
How competent is such a view; seriously defective reasoning.
I notice all these by-law challenges involve an existing dog. Yet to read one where a by-law is challenged in order to get a dog and yet to read the Tribunals view on a by-law that specifically bans just cats and dogs such as this one from a large rural SP.
Keeping of animals
The owners or occupiers of the lot shall be entitled to keep any animal upon their lot provided that:
4.1. no dogs or cats, other than assistance animals as prescribed by legislation, shall be allowed upon any lot or the common property;
4.2 the animal is adequately restrained to prevent the animal entering or encroaching upon the common property or any other lot; and
4.3. the keeping of such animal is not otherwise prohibited by law.
Hi Stephen, this was challenged by me before I had my pet on the premises. I was informed by the committee themselves that I should not mess with the by-law, and if I want my dog, I should sneak him in a bag as it’s the way it has always been done. This did not sit right with me, the building was full of pets when I moved in, I was the only one who tried to go down the right path of submitting a motion for change. From that moment on the situation became extremely ugly and bullying and intimidation tactics have been extreme. Hope that helps you understand the situation better. Kind Regards, Jo Cooper