Why strata by-laws banning all pets are no longer allowed in NSW and what this means for you?
On 12 October 2020, three judges of the NSW Court of Appeal (“the Court”) agreed that a by-law imposing a blanket ban on pets being kept by owners in a strata title building (“no pet by-law”) was invalid because it was oppressive under section 139(1) of the Strata Schemes Management Act 2015 (NSW) (“the Act”). Under this section of the Act, a by-law cannot be “harsh, unconscionable or oppressive” or else it is invalid.
The decision came after a lengthy five-year legal battle between the owners of a strata title unit located in The Horizon apartment building in Darlinghurst, NSW and that building’s Owners Corporation, to overturn the no pet by-law, which prevented the owners’ keeping their beloved miniature schnauzer named Angus in the building.
The full decision can be read here: https://www.caselaw.nsw.gov.au/decision/1750ba2de664989200f239fb?fbclid=IwAR2MFh6d5NOwMoIGik7-qxTlt34SMZfDdVJWRkGH9r0KdXXSGUIYBNgJpLI
Why was the no pet by-law considered “harsh, unconscionable, or oppressive”?
The Court effectively determined that you have the same right within your unit as any owner of a free-standing house has, despite being constrained by strata by-laws. Like any homeowner, if you own a strata title unit you have the same right to exercise any other property right within your unit, including keeping a pet, providing that the exercise of that right does not impact on another unit owners use and enjoyment of their home.
The no pet by-law was therefore oppressive as it restrained the lawful use and enjoyment of an owner of their unit and the common property, including to the extent that it would not allow a resident to keep a goldfish in a secure aquarium.
The Court considered the possibility that a barking dog in a unit could adversely affect another resident from enjoying their unit, but reached the conclusion that the Act and the model strata by-laws set out sufficient obligations on owners to supervise pets.
Although many attempts were made by the Owners Corporation to preserve the no pet by-law, the Court reached the conclusion that the no pet by law “could not, on any rational view enhance or be needed to preserve the other lot owners’ enjoyment of their lots and the common property”. Therefore, this means that based on this decision any strata by-law creating a blanket ban on all pets being kept by owners or occupiers of units is now invalid.
How does this Decision affect me?
If you are:
part of, or advise, an Owners Corporations:
o you will need to review the strata by-laws, particularly in relation to the keeping of pets to
determining whether those by-laws:
- are necessary to prevent an adverse impact on the enjoyment of other strata title
unit owners or residents; or
- if they comply with the Act and the Model By-Laws for keeping pets as set out
above.
o this decision may have wider implications for the Owners Corporation, as the extent to
which the Owners Corporation have in regards to the rights of owners may also be limited.
an owner of a strata titled unit:
o read your by-laws, the owners corporation are now limited in their ability to regulate the
keeping of pets in units and you may be allowed to keep a pet with or without the consent
of the Owners Corporation
a tenant:
o you do not automatically have a right to keep a pet in your apartment but, you may be
one step closer to welcoming a furry family member into your home.
o you must still obtain your landlord’s consent to keep a pet, as is required in all rentals in
NSW. If your landlord agrees for you to keep a pet in your apartment, you will need to
consider the following:
- if the property is suitable for a pet;
- that you are liable for any damage caused by your pet; and
- you could be deemed as breaching your lease if your pet interferes with the
peace of other residents by being noisy or a nuisance.