This updates on ‘no pets’ by-laws in NSW strata has been supplied by Bannermans Lawyers.
Update on ‘No Pets’ by-laws in Strata – The Miniature Schnauzer that Roared
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, increased noise and increased cleaning and maintenance costs for common property areas.
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The unintended consequences of pet ban reversal
There have been a few recent decisions in the Tribunal invalidating ‘no pets’ by-laws over the last 18 months.
However, on 12 October 2020, the NSW Court of Appeal handed down the decision of Cooper v The Owners – Strata Plan No. 58068 [2020] NSWCA 250 (“Cooper”). Here, the Court of Appeal overturned a previous decision of the NSW Civil and Administrative Tribunal Appeal Panel and deemed a by-law that provided an outright ban on pet ownership was “oppressive” pursuant to section 139(1) of the Strata Schemes Management Act 2015.
In the Cooper case, the owners corporation initially 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 (“Act”).
Whilst Angus’ owner was successful at first instance in the Tribunal, on appeal, the Tribunal’s Appeal Panel overturned the Tribunal’s previous decision and upheld the ‘no pets’ by-law.
Angus roared and the matter was appealed again to the NSW Court of Appeal.
The Court of Appeal overturned the Appeal Panel’s decision, in particular deeming at [88] that the ‘no pets’ by-law was:
‘’oppressive pursuant to section 139(1) of the Act ‘because it prohibits the keeping of animals across the board, without qualification or exception for animals that would create no hazard, nuisance or material annoyance to others. By-law 14.1 thus interferes with lot holders’ use of their real property in a respect and to an extent that is unjustified by any legitimate concern of others in the building”.
The effect of this decision is that the Court of Appeal has now set a state wide precedent that ‘no pets’ by-laws will likely be deemed oppressive and have no force or effect. As a result, this has fundamental implications for every strata scheme in New South Wales that has or is seeking to have an outright prohibition on the keeping of pets.
Pets in your building
Our experience with pet disputes is that they are always divisive, extremely personal and fiercely contested.
The Court of Appeal decision has made it abundantly clearly that by-laws providing a blanket ban on pets will likely be found to be invalid. Therefore, as a general comment and as means to attempt to avoid disputes, most strata schemes would be better served in having a by-law that allows pets subject to certain conditions and criteria.
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.
David Bannerman
Bannermans Lawyers
T: 02 9929 0226
E: [email protected]
This post appears in Strata News #414.
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?
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 article has been republished with permission from the author and first appeared on the Bannermans Lawyers website.
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“oppressive pursuant to section 139(1) of the Act ‘because it prohibits the keeping of animals across the board, without qualification or exception for animals that would create no hazard, nuisance or material annoyance to others. By-law 14.1 thus interferes with lot holders’ use of their real property in a respect and to an extent that is unjustified by any legitimate concern of others in the building”.
On the other hand, the Court of Appeal decision to impose the keeping of animals in a strata complex is oppressive against the Owners Corporation who in majority voted for the By-law of “No animals on the property without written approval from the Owners Corporation.
It is not oppressive to uphold a By-law of “Noise” against excessive noise that people including wild kids or dogs make whether by constant barking or squealing when left alone and neglected for hours on end by the owner of the dog who are not home. This occurs frequently. So, the justification is nuisance that adversely affects another lot owners / occupants enjoyment of living.
There is no such thing as quiet dog, quiet cat or quiet bird. A small dog’s barking and squeaking is as much of a nuisance as a large dog when kept inside a unit. Inadvertently it will create an annoying noise disturbance and nuisance. Not all strata unit common dividing walls are soundproof, especially the walls build with concrete blocks that transmit excessive noise.
The expression “assistance animal” should apply only to assistance dogs for blind people and that should be the only reasonable justification. All the other excuses for a companion animal no matter how small or large is nothing but a selfish desire for a play toy.
In order to ascertain whether the play toy animal will cause adversity to the enjoyment of living of other owners / occupants the Owners Corporation MUST receive an application for approval. The annoying thing about this rule is that occupants abuse the will of the Owners Corporation by ignoring to apply for approval and consequently it is sneaky occupants that cause disharmony within the strata community.
Such abuse of democratically voted By-laws of the owners corporation doesn’t only apply to keeping unauthorised animals, it applies to unauthorised changes to structures and appearance of strata common property and the interior of units by tenant occupants.
This arrogant malovance occurs so regularly by ignorant occupants that it is beyond a joke and it costs the owners corporation time and a great deal of money in legal fees to obtain that may or may not be recovered.
$500,000 spent and 5 years to obtain the judgement is a bloody pathetic disgrace!
The battle might have been won but not the war!
Oh, one more thing, Next time you encounter constant excessive noise from a barking / squealing dog or a cat in a strata unit complex, think of calling RSPCA to investigate the welfare of the animal.
Well thought out Henry. I live in a strata complex though that did have a staffie that was in the vast majority of cases, not noisy. Alas, the majority of dogs will cause excessive noise to other lot owners. The next question is then, what is going to be a permissible noise level ( barking) from a dog? Time will tell I suppose.
I read from this judgement that the nature of the specific dog in question was material to the courts decision. In my building we currently have a request from an older resident seeking a companion animal however they are proposing to get a puppy and have not owned a dog previously, nor been responsible for a puppy in an apartment environment. Unlike the well-behaved old dog in the Horizon, puppies with an inexperienced owner are a different situation. Also in my building short-term lettings run rampant and I have no confidence there would be any meaningful way to prevent opportunistic Airbnb operators from permitting their short-term visitors to bring animals. Irrespective of what a good by-law might require of legitimate residents to register and manage their animals, there is no effective means by which this can be manage short-term lettings. . The levels of disturbance and damage by short-term guests is already untenable, add a dog, to that mix and apartment living starts to become almost impossible.
Hi all
I live in an apartment opposite the beach (dog free beach) I have lived here for 7 years
I would love to have a small dog however they have a no pet bylaw
I have tried many times to have this changed
One lady (lived here for 17 yrs ) HATES dogs another owner moved in 2 years ago and again Hates dogs
So they will not change the bylaw
As much as they hate dogs I love dogs
I have 6 steps up to my apartment and another 6 septs to the road
Surely I am 72 and should have the right to have a pet.
I have seen it in the past how a pet gives you a reason to keep living when your partner dies
not that you go and buy a pet to replace them but just being there to comfort
Is there anyway around this or do two people have the power to rule another life
Must say this lady in particular does get the proxy votes as many units are rented or are holiday places and owners do not want to be bothered with the meetings So I am out numbered there
PLEASE I need help
I just want to live my live the best way I know how
Dee S
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 strata 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?
Thanks,
Fiona
Hi Fiona
We have responded to this question as a Q&A on this post: NSW: Q&A Can I Keep Pets in a Strata Building?
I’m looking to buy a home at the moment and, 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?
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.
If you are in Queensland, get the Seller to make the application with all the details of the pet as per the building’s pet application.
You could have clause that the contract settlement is subject to the pet approval.
A Queensland Sale contract is usually a 30 day contract, so you may have to request an extended contract time to allow for the pet approval.
Once approved then you can move in with the pet. If you do not get prior approval, you would need to apply once you are the registered owner and the pet cannot reside until approval is granted.
I would like to know why it goes to a vote from the owners corporation as to whether or not an animal such as a cat is allowed by vote to be kept by an owner or renter of a unit. Surely it is not a “level playing field” if one unit is voted it can keep a cat and another unit is advised that they have been voted against and can’t keep a cat .. We have a complex of 36 units . Being 4 separate stairwell accesses of 9 units .. We are all governed by the same registered Strata Plan. One of the 4 may allow a cat to be kept and one of the 4 may not. I have suggested we have a By Law put in place to control this unfair “playing field” ..
Hi David – very unusual circumstance if all four are under the same strata plan and have the one set of by-laws. I would suggest best way for us to assist you would be to send through a copy of the by-laws to [email protected].
Thanks
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.
Another reason for not living in a Strata Complex. No disrespect intended.
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