Update on 'No Pets' by-laws in Strata - The Miniature Schnauzer that Roared

The issue of pets in strata schemes has always been a controversial and fiercely contested issue.

 

Pets are often viewed as a member of the family by some, or conversely, an unpleasant annoyance by others.

 

Benefits can include increased property values and rents associated with pet friendly buildings together with health benefits associated with pet ownership. Downsides can include disharmony arising from disputes over pet ownership and increased cleaning and maintenance costs for common property areas.

 

There have been a few recent decisions where the Tribunal has invalidated ‘no pets’ by-laws that provided a blanket ban on pets in the building such as Yardy v Owners SP5723 [2018] NSWCATCD19 and Roden v Owners SP 55773 NSWCATCD 18.

 

On 21 November 2019, the Tribunal handed down the decision in The Owners – Strata Plan No. 58068 v/ats Cooper [2019] NSWCATCD (“Cooper”) where the Tribunal considered a no-pets by-law in the high profile Horizon building in Darlinghurst.

 

In the case, the owners corporation sought orders for the removal of a Miniature Schnauzer called Angus, a thirteen year old pup who was well trained and had lived in strata the majority of his life. The owners corporation also sought a penalty against Angus’ owner for a breach of a notice to comply as a result of keeping the dog in the strata scheme.

 

Angus’ owner then cross claimed against the owners corporation seeking that the ‘no pets’ by-law was invalidated for being harsh, oppressive and unconscionable pursuant to sections 139(1) and 150 of the Act.

 

The Tribunal considered the evidence filed by the parties and held  at paragraph 115 that Angus’ owner demonstrated that based on his personality, behaviour and the type of pet he is, that it was an:

 

“unpleasant or ungentle in action or effect (“harsh”), unjust or unreasonably excessive or not in accordance with what is just and reasonable (“unconscionable”), and unjustly harsh or burdensome in exercise of power (“oppressive”), simply to ban and seek to expel his type of pet… under a blanket prohibition rather than rely upon the amenity and conduct by-laws to regulate custody and management under the stewardship of owners…”

 

The Tribunal subsequently held the ‘no pets’ by-law was harsh, oppressive and unconscionable pursuant to section 139(1) of the Act and ordered that the owners corporation remove it from the registered by-laws of the strata scheme. The Tribunal also dismissed the penalty application.

 

Interestingly, the Tribunal held it may be possible to have a ‘no pets’ by-law in certain objective circumstances like in:

 

  • A very small scheme;
  • A scheme with a high number of absentee landlord owners and has a high tenant turnover (e.g. a scheme that permits short term letting through platforms such as Airbnb); and
  • An owner buying into a scheme with notice of the ‘no pets’ by-law and the owner confirms in writing of notice of the ‘no pets’ by-law and even possibly provides an undertaking not to challenge the by-law.

So what does the future hold for pets in strata?

 

The decision in Cooper is the longest and most comprehensive decision on pets by-laws to date. It also somewhat moved away from the previous line of cases that the Tribunal has decided on pets.

 

The decisions on pet by-laws in the Tribunal indicate that the Tribunal will most likely invalidate a ‘no pets’ by-law. Therefore, as a general comment, most strata schemes would be better served in having a by-law that allows pets subject to certain conditions and criteria. However, the decision in Cooper illustrates the possibility of a ‘no pets’ by-law being upheld in certain rare circumstances.

 

Our experience with pets disputes is that they are always divisive, extremely personal and fiercely contested.

 

In light of the above, if you are having questions about pet by-laws or concerns about pets in your strata scheme, we have considerable experience and expertise in this area and can help.

 

 

***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.

 

 

 

Prepared by Bannermans Lawyers

22 November 2019

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For more information on this topic or any legal enquiries please contact your Strata Team.

 
 

 

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