Blog December 3, 2020

Facts about the new ruling on NSW strata pet by-laws

Keeping pets in apartment buildings has long been a topic of debate between animal lovers and owners corporations. Strata scheme by-laws usually provide guidance on the subject, but a recent ruling by the NSW Court of Appeal could affect how these pet by-laws are imposed moving forward. Let’s take a look at how this ruling came about and what this could mean for owners corporations, residents and strata managers.

Background on the NSW Court of Appeal decision

On the 12th of October 2020, the NSW Court of Appeal handed down a landmark decision which overturned the blanket pet ban by-law at Horizon building in Darlinghurst, stating that it was oppressive and therefore breached the Strata Schemes Management Act 2015 (the Act). The new ruling favoured Jo Cooper in her 5-year legal battle against Horizon which sought to ban her from keeping her pet dog at the premises. Jo has previously lost the case before the NSW Civil and Administrative Tribunal (NCAT) in May this year before filing the appeal that won her the case.

With this new ruling, can strata scheme by-laws ban pets in the building?

The latest decision effectively invalidates blanket pet ban by-laws in strata schemes, adding that a by-law can be oppressive if it limits the ability of the owner to use their property without exception or qualification, on a basis that has no connection to the impact of other lot owners. This essentially means that there should be a consideration to allow residents to keep pets, provided that doing so wouldn’t impact other residents in the building. But when residents and owners corporations disagree that a pet by-law contravenes the Act, they may submit an application to NCAT to decide the matter.

How does this new ruling affect the strata scheme?

This new ruling offers more clarity on pet ban disputes between owners and owners corporations and will hopefully minimise the number of situations in which people decide to go to tribunal for such cases.  Here are a few things various stakeholders in the strata scheme can expect:

Strata Managers

Strata managers are responsible for ensuring the strata scheme remains compliant with legislation. This means that they will need to work with their owners corporations to help them adjust their pet by-laws to suit the new ruling and ensure that amended by-laws are communicated clearly to owners. Strata management software can help simplify compliance and provide tools such as SMS and email to make communicating with owners easier.

Owners corporations

The decision has made clear how the restriction on “harsh, unconscionable and oppressive” by-laws apply under The Act. Owners corporations will need to carefully review all their by-laws – not just those relating to pets, to ensure they don’t violate the provisions of The Act as applied in this new ruling.

Residents

For pet-loving residents, this new ruling is a win, but it should be noted that it is not absolute. The owners corporation can still force them out when their pets are found to be a nuisance or cause issues for other residents in the building (e.g. pets are loud, smelly or has hurt other people). Conversely, there are also residents who voluntarily chose animal-free buildings because of allergies or fear of animals which will find this new ruling distressing.

What’s next for strata scheme pet by-laws?

With the statutory review of The Act commencing last month, the by-laws relating to pets will also be closely examined. The recommendations following this review, together with a strong precedent set by the Court of Appeal decision will provide more clarity as to how strata scheme pet by-laws can be better governed. It is likely that the spirit of the Court of Appeal decision will be upheld and pet-friendly amendments will come into place in the new strata legislation.

For more information on pets in a strata scheme, you can read this article in the NSW Fair Trading Website.

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