WA: Are emotional support animals exempt from “no pets” strata by-laws in WA?

This article discusses whether emotional support animals strata in WA are exempt from “no pets” by-laws, explaining how assistance animal definitions under WA and federal law affect a strata scheme’s ability to enforce pet prohibitions.

Question: If my pet is not a Government Accredited Assistance Dog (with the ID card) but I have a letter from my Doctor stating I have a mental health condition and require an emotional support assistance animal, is that enough for my animal to be exempt from our “no pets” by-law?

My strata by-laws state that pets are prohibited and, if found to be on property, will have to be removed.

I have been diagnosed with depression and PTSD and want to get an emotional support animal (which is not ‘legally’ an assistance animal). I have a Drs certificate to state I require an emotional support animal. Under these circumstances, can the Council of Owners enforce the by-law and demand I remove the animal?

If my pet is not a Government Accredited Assistance Dog (with the ID card) but I have a letter from my Doctor stating I have a mental health condition and require an emotional support assistance animal, is that enough for my animal to be exempt from our “no pets” by-law?

Answer: See below for our list of suggested actions.

Disclaimer – this is not to be intended to be legal advice and we recommend the owner is seeking their own legal advice.

Under Section 3 – Terms Used – an assistance animal has the meaning given in the Disability Discrimination Act 1992 (Section 9)[DISABILITY DISCRIMINATION ACT 1992 – SECT 9 Carer, assistant, assistance animal and disability aid definitions] (2);

Section 46 of the Strata Titles Act 1985 describes when bylaws are invalid – therefore, Scheme Bylaws are invalid

subsection (h) to the extent that they prohibit or restrict the keeping on a lot of an animal that is uses as an assistance animal by a person with a disability who is an owner or occupier of a lot:

subsection (i) to the extent that they prohibit or restrict the use on the parcel of an assistance animal by a person with a disability.

Section 9 (2) of the Disability Discrimination Act 1992 states:

For the purposes of this Act, an assistance animal is a dog or other animal:

1. accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or


2. accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or


3. trained:
   
   1. to assist a person with a disability to alleviate the effect of the disability; and
   
   
   2. to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

Under the terms, disability in relation to a person, means:

1. total or partial loss of the person’s bodily or mental functions; or


2. total or partial loss of a part of the body; or


3. the presence in the body of organisms causing disease or illness; or


4. the presence in the body of organisms capable of causing disease or illness; or


5. the malfunction, malformation or disfigurement of a part of the person’s body; or


6. a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or


7. a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
   

   and includes a disability that:



8. presently exists; or


9. previously existed but no longer exists; or


10. may exist in the future (including because of a genetic predisposition to that disability); or


11. is imputed to a person.

We would suggest the following:

• Obtain from a mental health practitioner a recommendation for the owner to get an assistance animal to support the mental condition/disability identified


• Then notify the Strata Company of the recommendation received from the mental health practitioner for the owner to obtain an assistance animal in support of the mental condition/disability identified


• Advise further the Strata Company what kind of assistance animal the owner is intending to get and


• Assure the Strata Company that the assistance animal is appropriately trained to assist the owner to alleviate the effect of the mental condition – and in case of a dog – that it meets the standards of hygiene and behaviour in public places.

If the Strata Company continues to state that pets are not allowed hence refusing the owner to keep a pet under their bylaws, we suggest that the owner seek legal advice to take this matter further.

This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.

This post appears in Strata News #615.

Marietta Metzger magixstrata E: marietta@magixstrata.com.au P: 08 6559 7498