This article is about the next chapter for pets and strata.
The rules of the game relating to pets in strata buildings have changed. Many owners corporations are not grappling with those new rules and trying to come to grips with them. This has resulted in a shift away from by-laws that ban pets to by-laws which regulate the keeping of pets in strata buildings. But do some of the rules that have been included in new pets by-laws go too far? A recent NCAT case takes a closer look at that issue.
Background
The Elan is a large apartment building in Darlinghurst, Sydney. Previously, the Elan had a by-law banning pets. An owner in the Elan, Mr Roden, applied to NCAT to overturn the “no pets” by-law. Ultimately, Mr Roden was unsuccessful. However, after Mr Roden’s case was decided, the NSW Court of Appeal ruled in the Cooper case that a “no pets” by-law was not enforceable. For that reason, the Elan repealed its “no pets” by-law and introduced a new by-law regulating pets.
The New Pets By-Law
The new pets by-law requires owners and occupiers of lots in the Elan to obtain the permission of the owners corporation to keep pets or allow their visitors to bring pets into the building. The by-law also contains rules regulating the keeping of pets. Those rules require a $300.00 application fee to be paid to the owners corporation each time an owner or occupier applies to the owners corporation for permission to keep a pet. This is intended to cover the owners corporation’s costs for considering the pet application. The by-law also contains rules prohibiting pets in certain areas of the building.
The NCAT Case
Mr Roden objected to the rules in the new pets by-law which require a $300.00 pet application fee to be paid and which also prevent pet owners having their pets with them in the common property lobby when they check their mail. Mr Roden applied to NCAT to overturn those rules on the grounds that they are harsh and unenforceable. Mr Roden’s claim was unsuccessful. NCAT considered that those rules are necessary for the proper management, administration, control, use or enjoyment of the lots and common property in the Elan and that those rules enhance or preserve the other lot owners’ enjoyment of their lots. For those reasons, NCAT concluded that the rules were not harsh and were enforceable.
The Battle Lines are Drawn
The decision in the Cooper case has seen a shift away from by-laws that ban pets to by-laws that regulate the keeping of pets. However, many of the rules that have been included in those new by-laws are proving to be controversial because often they make it difficult for a pet owner to keep a pet in a strata building. For example, those rules often require pet owners to:
- pay the owners corporation a pet application fee or a bond;
- carry their animals or keep their animals tethered to a leash when on common property;
- ensure their dogs and cats are immunised, microchipped and registered with the local council;
- be liable for any damage or injury caused by their pets.
The question remains:
Are these rules enforceable or do they go too far?
That question is likely to give rise to further litigation in NCAT as pet owners challenge what they perceive to be unreasonable rules regulating the keeping of pets that are included in new pet by-laws.
The Test
Ultimately, the question as to whether rules regulating the keeping of pets are enforceable will depend on several matters. First, the rules will need to be made for the purpose of the management, control, administration, use or enjoyment of the lots in the common property in a strata building. Second, the rules can not be harsh or oppressive. This means that, for example, rules that prohibit pet owners and their animals doing certain things (such as entering or remaining on certain areas of common property) must be necessary to avoid the behaviour of pets that is likely to have a detrimental impact on the use and enjoyment of the lots and common property by other owners and occupiers. However, in our view, those rules will go too far and be harsh and enforceable if they prohibit altogether a pet doing something which is capable of being done in a way that does not have a detrimental effect on the amenity of other owners and occupiers. For example, if it is possible for certain types of pets to enter and remain in common property lifts or gardens without having a detrimental impact on the amenity of other owners and occupiers, a rule in a pets by-law that prohibits pets doing so is likely to be unenforceable.
Conclusion
The shift away from “no pets” by-laws to by-laws that regulate pets has changed the rules of the game regarding pet ownership in strata buildings. What remains to be explored is how far those rules can go. It is likely that there will be further pet owners who will seek to challenge in NCAT rules included in new pets by-laws on the grounds that those rules go too far and are harsh and unenforceable. It remains to be seen how NCAT will deal with those challenges.
Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: [email protected]
P: 02 9562 1266
This post appears in Strata News #508.
If you have a question about pets and strata or something to add to the article, please leave a comment below.
Disclaimer: The information contained in this article is provided for your personal information only. It is not meant to be legal or professional advice nor should it be used as a substitute for such advice. You should seek legal advice for your specific circumstances before relying on any information herein. Contact JS Mueller & Co for any required legal assistance.
JS Mueller & Co Lawyers has been servicing the strata industry across metropolitan and regional NSW for over 40 years. We are a specialist firm of strata lawyers with in depth and unmatched experience in, and comprehensive knowledge of strata law and levy collection.
Read next:
- NSW: Q&A Keeping Pets in a Strata Building
- NSW: Q&A Our Committee is Rescinding the Keeping of Pets ByLaw
This article has been republished with permission from the author and first appeared on the JS Mueller & Co Lawyers website.
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“For example, if it is possible for certain types of pets to enter and remain in common property lifts or gardens without having a detrimental impact on the amenity of other owners and occupiers, a rule in a pets by-law that prohibits pets doing so is likely to be unenforceable”
I disagree. The common property is not owned by the owner / renter occupant, The owners corporation has explicit responsibility over common property maintenance and it has a legal right to reject any one allowing their pets to roam and trespass around the common property garden grounds and any other common property area without the owners corporations written approval.
The catch words are: “Seek written approval first” be it for pets, minor renovations, major renovations, digging up the garden on common property, doing their own hedging, hoarding rubbish refuse in the backyard/s on common property, installing Pay TV satellite dishes, raising flag on flag poles or any change to the appearance of common property, stripping motor vehicles on common property parking space, riding motorbikes through common property grounds or hijacking common property space for their parking of additional vehicles.
Too many times we read news media headlines and advice from legal experts who ignore this emphasis and insinuate an open door for pet owners to do what they like when they live in strata complex. They can do what they like within reason in their owned or rented airspace but not when it comes to common property. In fact, it is unreasonable and oppressive not to seek written approval from the owners corporation first.