This NSW lot owner is concerned about their committee rescinding the Keeping of Pets bylaw in their building. Emma Smythies, Bugden Allen Lawyers address this issue.
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.
This post appears in Strata News #333.
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.
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