Can I have a pet in my strata lot?
Animal lovers received a great result in October 2020 with the landmark Court of Appeal decision in Cooper v The Owners – Strata Plan No. 58068  NSWCA 250 (“Cooper”) which held that by-laws containing blanket bans on pets were harsh, unconscionable, or oppressive.
The Strata Schemes Management Act 2015 (“Act”) is now being amended to include provisions that are less restrictive on owners in strata schemes.
In short, the Act is being amended through the Strata Schemes Management Amendment (Sustainability Infrastructure) Bill 2021 (“Amendment”) to ensure that a by-law cannot unreasonably prohibit the keeping of a pet. The Amendment has been passed by Parliament and will soon come into effect.
Subsections (1)-(4) of the Amendment state:
1. Each of the following has no force or effect to the extent that it would unreasonably prohibit the keeping of an animal on a lot
- A. a by-law,
- B. a decision by an owners corporation under a by-law.
2. It is taken to be reasonable to keep an animal on a lot unless the keeping of the animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property.
3. The regulations may specify circumstances in which the keeping of an animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property.
4. A by-law that prohibits the keeping of an animal on a lot is not harsh, unconscionable or oppressive if it does not unreasonably prohibit the keeping of an animal on a lot.
When does the new legislation start?
A date has not been specified, however it is likely to commence in mid-2021.
What does this mean for animal lovers in strata schemes?
Owners Corporations cannot unreasonably withhold consent to keeping of an animal, unless it interferes with another occupant’s use and enjoyment of their lot or the common property.
What is unreasonable?
Common sense will prevail with these cases and the NSW Civil & Administrative Tribunal (NCAT) will likely apply the ‘reasonable person’ test (i.e what would a reasonable person think). Factors of species, size, noise, training, and suitability for strata living will be considered by NCAT and the Courts.
We anticipate that Parliament will also consider amending the Strata Schemes Management Regulation 2016 to provide further guidance on what is “unreasonable”.
Should Owners Corporation amend their by-laws?
With the decision of Cooper and the amendments to the Act, it may be time for Owners Corporations to review their by-laws and consider whether updates are necessary to reflect the recent legal developments affecting strata schemes.
Should Owners Corporations choose to ignore the recent legal developments, they risk facing a potential cost order from NCAT if lot owners are forced to appeal decisions of strata committees regarding the prohibition of the keeping of their pet.
Owners Corporations should now amend their by-laws to allow for a pet application process which balances the needs of all lot owners and ensures all decisions concerning animals in the strata scheme are reasonable and comply with both the requirements of the Cooper Case and the Amendment.
How can we help?
If you have any questions or concerns about your strata’s by-laws or you are part of an Owners Corporation that wants to ensure their by-laws are still valid and enforceable at law, please do not hesitate to contact Marcus Carbone from Southern Waters Legal on 9523 5535.
We are here to assist you with any of your strata enquiries.