Question: We have registered a no dog by-law. Does our by-law override the new WA tenancy laws that allow pets?
Our strata company has recently registered a by-law in our 24-unit complex stating no dogs are allowed. We have discovered one resident has a dog, though curiously, didn’t vote against the by-law.
Is there a procedure to allow this one dog for as long as it lives but not any other dogs? Does our by-law override the new WA tenancy laws that allow pets?
Answer: You should obtain legal advice about whether the by-law is invalid and the appropriate wording to limit the risk that the by-law is invalid.
The answer to your first question depends on the terms of the by-law. A by-law about pets should be drafted to give the strata company the power to agree to a person keeping pets in certain circumstances.
For example, a by-law along the following lines may be appropriate:
“An owner or occupier or a lot must not keep animals on the lot or the common property without the written consent of the council, which consent must not be unreasonably refused.”
If the by-law for your strata does not give the council the power to approve pets, it may be worthwhile to consider an amendment to the by-law, which would allow the council to address the current circumstances.
It is possible the by-law will be invalid if it is inconsistent with the new WA tenancy laws that allow pets, but this will depend on the wording of the law (once it is passed). This is because section 46(b) and 46(f) of the Strata Titles Act 1985 (WA) provide that by-laws are invalid to the extent that they are inconsistent with any written law (in this case, the Residential Tenancies Act), and to the extent that they restrict the lease of a lot.
It is also possible that the by-law may be invalid, even before the introduction of the new WA tenancy laws, depending on the circumstances and wording of the by-law. In a recent case in New South Wales, a by-law containing a prohibition on keeping animals was found to be invalid (Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250).
This question has not yet been settled in Western Australia but was considered in the context of holiday accommodation in Steele and The Owners of Cocos Beach Bungalows [2021] WASAT 101).
You should obtain legal advice about whether the by-law is invalid and the appropriate wording to limit the risk that the by-law is invalid.
This post appears in the September 2023 edition of The WA Strata Magazine.
Tahnee Watson
Douglas Cheveralls Lawyers
E: tahnee@dclawyers.com.au
P: 08 9380 9288
The content of this document is intended to provide general information only, and is not intended to be comprehensive, to constitute legal advice or to create a solicitor-client relationship with Douglas Cheveralls Pty Ltd (and no such relationship is created). Douglas Cheveralls Pty Ltd makes no warranties, guarantees or representations about the accuracy, currency or suitability of the information to specific circumstances, and will not be liable (including in negligence) for any loss suffered as a result of reliance on the information contained in this website.
I’m the owner of a unit in Broome the strata body has a ‘no pet policy’. With the changes to the” Tenancy act” will I be able to take my dog to my unit ?
Hi
Please see the Q&A above: Question: We have registered a no dog by-law. Does our by-law override the new WA tenancy laws that allow pets?
Thanks
Our apartments in Sth Perth, had a no pets rule, now 2 tenants have snuck there dogs in ,and have said they will be taking them into our new pool area. and even taking them in for a swim We are horrified; are our legal rights .?
Hi Lee
I’d recommend you take a look at this question above, responded to by Shane White:
QUESTION: Can a Strata Company prohibit the transit of pets in a lift?
As Shane mentions, check your bylaws, and “should the animal present a nuisance, then the strata company can instigate the breach of by-laws process.”
We hope that helps. If not, feel free to respond to this comment.
Thanks
Q. Our complex ( of 65 units high rise) is now becoming like a RSPCA pound. There owners and tenants keeping dog/s in their units which some haven’t asked for approval of the Council of Owners. I don’t believe that there is any LEGAL restrictions on keeping a dog as what I have gleaned from the above information.
I’m concerned that we have only one elevator to service the building and dogs are transported daily and not using the stairs.
Q. Is it reasonable to in force a pet bond to cover any damage or cleanup required from their pets?
Q. With a bond of e.g. once only $150 registration for EACH dog PLUS a $100 fee p/a for having the elevator cleaned periodically ( fumigated ) for allergies the people may have to dogs
This would have to go to a GM of cause but is there any legal issues with the above if it was voted on at 70% agreed to in force a PET BOND in our complex ?? Thank you
I’m apart of a multi-level strata development that allows a cat or small dog breed, however a $5000 pet bond needs to be paid prior, with half of the bond being returned in 12 months time if no issues arise. I believe the pet bond is excessive and unreasonable. Do you believe I would have a good chance of having this challenged with the change in Strata Laws and how would it be best to challenge this?
Hello – thanks for this – in terms of challenging strata by-laws I’m a bit confused by your answer that to be successful one would require the following vote:
** Not less than 50% of owners and not less than 50% of the aggregate unit entitlements agreeing and a no vote that is not greater than 25% of owners and not greater than 25% of the aggregate unit entitlements.
I don’t actually understand this – can you or someone unpack this for me please?!
Also what do you mean by “It is a “double” vote but can be achievable”
thanks so much
Hi Jennifer
The following response has been provided by Brian Rulyancich, StrataTAC:
Yes, the voting can be a little confusing.
I can simplify this by saying:
It is a schedule 2 (Conduct by-law) and you will need a “Special Resolution” which is in 2 parts, one is
the owners and one is the unit entitlements
To get an Agreement this means:
Part One
– you need at least 50% of all owners agreeing
– but no greater than 25% 0f owners disagreeing
Part Two
– you will require at least 50% of the Unit Entitlements agreeing
– and again, no greater than 25% disagreeing.
This is where I mentioned the “double vote”
Does this apply to Queensland strata living? I have read other articles stating that the Body Corp cannot restrict owners from having dogs/cats as it would be deemed an unreasonable By-law.
Hi Elizabeth
Strata Legislation differs in each state around Australia. This is why we specifically refer to the relevant state’s legislation when responding to readers questions.
In this instance, this a WA article as indicated in the title of the post and the legislation strictly applies to WA.
The applicable article for QLD would be QLD: Q&A Seeking Pet Approval from Your Body Corporate? and we refer you to the information in the article regarding the unreasonable refusal of a pet.
Also can you advise if when trying to change a by-law does it have it be without dissent or does the 75% rule apply.
Hi Maureen
We have responded to your questions in the above post.
What happens when we own the dog but permit it to live with our daughter in her apartment. Surely she can bring dog to us for visit about every two or three week.
Hello thanks for this information. Just to clarify one of the By Laws where I live says ‘A proprietor, occupier or resident shall not keep any animals on the lot that he owns, occupies or resides in or the common property.’
My understanding is that the word keep assumes owning a pet. I allow my son to bring his dog to visit. However I’m being told by another resident that animals are completely prohibited from all areas of the complex. Surely this by law doesn’t mean I can’t have animals visit. I don’t want to keep an animal but love a visit every now & then.
Thanks
Hi Louise
We have received the following reply from Strata Martyr:
The world we live in has to cater for most preferences. Never is this more apparent than in Strata, where a duty is placed on the strata company to control and manage the complex for all owners.
The strata becomes a self-ruling body that has the ability to create, enforceable rules if this is the will of the owners. To that end, we see complexes for over 55s living there, pet-free, smoke-free, mixed strata commercial and residential complexes, high rise, low rise, townhouses and free-standing dwellings, swimming pools, gymnasiums, sky lounges, lifts, fire systems, CCTV. All items need a certain level of control to maintain the status quo. The chosen tool is by-laws. There are good and there are bad.
Pets:
Some people like cats, dog, or birds and fish. No one has ever been breached for keeping a fish or pet rock. Some people are allergic to cat hair or dogs and or adverse to animals defecating and urinating on common property or have a phobia. For these people, if they are also people who wish to live in a strata, the first thing they should do is to see the by-laws as they want for one reason or another to live at a complex that has a “no-pet” by-law.
A pet visiting may trigger an allergic reaction or expose occupants to a vista of someone’s pet relieving itself on the common property.
Allowing a pet to visit dilutes the intent of the by-law and the reason people paid $100ks for the right to live there. This may seem harsh but there is no middle ground which is why this is contentious. This behaviour will lead to pet sleepovers and then you looking after the pet while the owner has a week in Bali. I am being a little flippant but I have seen enough CCTV footage of pets urinating in elevators to have a show on TV. To try and control this, by-laws were created that required the pet owner to carry their dog or cat when on common property as animals smelling other animal was a trigger for marking common property as their territory.
This then led to a restriction on pet size to ensure they could still be carried. By-laws need to be Black and White as human nature with try to find a way to by-pass any restrictions.
It sounds like you are living in a strata complex that will require you to visit your friend’s pets rather than their pet visiting you.