NSW: Q&A Can the Owners Corporation Requests a Pet Bond?

A NSW tenant is wondering whether their Owners Corporation can have a bylaw requesting a strata pet bond of $500.

• QUESTION: Can Owners Corporations charge a pet bond when considering applications for pets in a strata building or not?
• QUESTION: Is it possible to ask pet owners to pay a bond to the owners corporation to cover any costs incurred by strata as a result of their pets or them breaking the rules?
• QUESTION: I’m a tenant with a cat. The Owners Corporation has a bylaw requesting a $500 Pet Bond to be paid to strata. I thought pet bonds weren’t legal in NSW.

Question: Can Owners Corporations charge a pet bond when considering applications for pets in a strata building or not?

I have now watched two Webinar Q&As via LookUpStrata, one with Bannermans and one with JS Mueller & Co Lawyers.

Both lawyers have provided two different responses to the question of pet bonds/fees for strata owners. While Bannermans stated they have concerns about owners corporations charging pet bonds, JS Mueller said pet bonds are allowed and becoming more common. This has caused a lot of frustration and angst for pet owners in strata. I run a page Pets in Strata Group dedicated to this cause as I have spent 6 years fighting for pet owners’ rights in strata, the feedback is ongoing and provides a heightened level of frustration.

I would like to suggest that your forum commits to sharing correct information, to avoid leaving your audience confused and frustrated.

“The Court of Appeal noted that strata title is a well-known form of real property and is subject to the fundamental principle of indefeasibility of title. This has significance in identifying the attributes (and constraints) of a particular title which, in this case, were the by-laws (at [1], [9]) ….”

The Court made it clear that unless there is a negative impact on another lot, the right to pet ownership in strata is protected by law. For someone to suggest that it is lawful to charge owners for exercising that right is against both property & strata laws and legislation. At what point does it stop, do we start charging owners for allowing visitors just in case they cause damage to common property.

The notion that an “administrative inconvenience” justified a fee was also challenged in my Court of Appeal and was not accepted:

“Perceived administrative convenience does not determine the validity of a by-law: [46] and [54]; [82]. (by Basten JA, Macfarlan JA and Fagan J agreeing)

There are sections in the act that protect against nuisance and damage, the most appropriate channels to deal with these issues are via NCAT.

The Roden case also did not consider the updated legislation on 25 August 2021. It is flawed and a shame it was not appealed.

ADMIN: You can read more about Jo Cooper and the Cooper case here: ‘Let the games begin’: All out war between pet owners and strata bosses

Answer: I have concerns about an owners corporation’s ability to charge an administrative fee to exercise a function.

On 30 August 2021, the Tribunal handed down the attached decision of Roden v The Owners – Strata Plan No. 55773 [20221] NSWCATCD 61 (“Roden”).

In Roden, the Tribunal upheld a clause in a by-law that required the payment of a $300 administration fee for owners seeking to apply to have a pet in the building. In particular, the Tribunal considered the administration fee in light of the Cooper Court of Appeal decision and held at paragraph 9:

“In my opinion the amount charged is not unreasonable and it is not harsh unconscionable or oppressive or does not otherwise restrict a lot owner in the enjoyment or exercise of his or her rights incident (sic) to ownership of a lot within the scheme.”

However, on 24 August 2021, section 137B of the Strata Schemes Management Act 2015 (“Act”) and clause 36A of the Strata Schemes Management Regulation 2016 came into operation.

Section 137B(1) and (2) state:

1. “Each of the following has no force or effect to the extent that it would unreasonably prohibit the keeping of an animal on a lot—
   

   1. a by-law,
   2. a decision by an owners corporation under a by-law.

2. It is taken to be reasonable to keep an animal on a lot unless the keeping of the animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property.”

The significance of the recent amendments is that section 137B(1) of the Act effectively enshrines the Cooper decision into the Act. However, section 137B(2) then goes a step further in stating ‘it is taken to be reasonable to keep an animal on a lot…’ This effectively presumes that it is reasonable to keep an animal on a lot unless it interferes with another occupant’s use and enjoyment after the animal has been living in the building.

Whilst Roden was decided a week after the amendments came into operation, it does not appear that the Tribunal considered the operation of the amendments in its decision. It may have been the case that the Tribunal was unaware of the amendments at the time of handing down the decision.

I have concerns about an owners corporation’s ability to charge an administrative fee to exercise a function. As a result, we do not recommend the charging of a fee for discharging the obligation to consider the keeping of a pet.

David Napoli
Bannermans Lawyers
E: [email protected]
P: 02 9929 0226

This post appears in Strata News #523.

Question: Is it possible to ask pet owners to pay a bond to the owners corporation to cover any costs incurred by strata as a result of their pets or them breaking the rules?

The answer that question is yes. I’ve drafted many pest bylaws that require pet owners to pay a bond to the Owners Corporation before moving their pet into the building. The bonding then gets held by the Owners Corporation until the pet leaves the building permanently, such as when the tenant lease expires or the owner sells their apartment. The bylaw allows the owners corporation to use that bond to cover the costs that might incur such as cleaning areas of the common property that is soiled by the animal or repairing damage caused by the animal.

Are pet bonds a fairly common request or do most people not know that they are available?

Answer: Pet bonds are becoming increasingly common

It’s becoming increasingly common, and I think as people start to realise that no pets bylaws are no longer enforceable, it will become more common and more prevalent. It really started in renovations bylaws, where you saw requirements for renovators to pay bonds to owners corporations before starting work, and that has filtered into other bylaws for example, by laws regulating moving into and out of the building when people will often damage lift doors and the like when they’re moving furniture and other large objects.

Now the requirement for payment of a bond is starting to filter its way into pets bylaws.

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

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

Question: I’m a tenant with a cat. The Owners Corporation has a bylaw requesting a $500 Pet Bond to be paid to strata. I thought pet bonds weren’t legal in NSW.

I’m renting an apartment and I have a cat. My landlord has asked me to fill in a form for the cat, by request of the owners corporation.

The form states cats must be registered with the strata, however, it also contains a clause referring to a bylaw requesting a $500 pet bond.

My understanding is that pet bonds are not legal in NSW.

Who is required to pay the bond to strata? The owner or the tenant? A $500 bond seems unreasonable given the cat is not allowed to access any common areas.

Answer: As a Tenant, you must comply with both your lease and the strata by-laws.

Pet bonds are not illegal and the strata legislation is silent on the matter.

Usually, the pet-owner would provide the bond to the owners corporation as security in case of damage to or soiling of the common property.

You may wish to try to negotiate the amount of the bond, however, even though the cat does not leave the confines of your apartment, if, for example, you have floorboards within the apartment the cat might scratch those or cause other damage to common property within your apartment or cause smells or accidents which might seep into the apartment below.

You are correct regarding residential tenancies and pet bonds in NSW. On their tenancy information pages, NSW Fair Trading states: Higher bonds cannot be charged for tenants with pets, children or for any other reason. It would be unfair that a Landlord could charge an additional bond over and above the 4 weeks (standard) bond already held by the Landlord.

As a Tenant, you must comply with both your lease and the strata by-laws.

So, although paying your Landlord a pet-bond is unlawful, you will still need to comply with strata requirements eg whether or not pets are permitted, pet application fee, pet bond (possibly), rules and regulations about the keeping of the pet and whether or not it may be on the common property etc.

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

These articles are not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

This post appears in Strata News #302.

Have a question about strata pet bonds or something to add to the article? Leave a comment below.

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Read next:

• NSW: Q&A Keeping Pets in Strata Units. How Many Are Too Many?
• NSW: Q&A Can A Strata Bylaw Set a Size Limit for Dogs?

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