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.