Can I keep pets in a strata building? Are pets allowed in strata units? These are just two questions that are frequently asked by strata owners and rental tenants of a strata building. The topic of pets, however, is an emotional one which commonly divides opinions. Some people believe that their pet dog or cat is an important member of the family, whilst others believe that pets are a nuisance and should not belong in strata apartments.
Pros and cons of allowing pets in strata schemes NSW
There are many pros and cons of allowing pets in a strata building. Firstly, allowing pets can attract pet owners to live in the building, who typically find it hard to find tenancy in other strata buildings. As Australia is a nation of pet lovers, allowing pets may also increase property values, particularly if it is a pet-friendly apartment development. However, the drawbacks of having a pet can include increased cleaning and maintenance costs of common property areas due to mess, a nuisance to neighbours with noise and even animal aggression. Damage to an apartment lot can also reduce the property value due to repairs.
Current Sydney by-laws for keeping a pet in a strata scheme
When it comes to allowing pets in a strata scheme, the Owners Corporation can either adopt the Schedule 1 By-laws (for schemes registered prior to 1 July 1997) or the Model By-laws (for schemes registered on or after 1 July 1997) or register its own By-laws, which are agreed upon by a majority of strata owners and occupiers.
Strata schemes registered before 1 July 1997
The By-law allows you to keep an animal, provided that you have obtained the prior written approval of the Owners Corporation. The approval of the Owners Corporation cannot be unreasonably withheld.
Strata schemes registered on or after 1 July 1997
By-law 16 contains three possible options for the keeping of animals:
Option A
You must obtain the prior written approval of the Owners Corporation, before keeping any animal, except fish in a secure aquarium, on a Lot or the Common Property. The approval of the Owners Corporation cannot be unreasonably withheld.
Option B
You must obtain the written approval of the Owners Corporation, to keep any animal (except a cat, a small dog or a small caged bird, or fish kept in a secure aquarium) on the Lot or the Common Property.
If you keep a cat, small dog or small caged bird on the Lot then you must:
(a) notify the Owners Corporation that the animal is being kept on the Lot;
(b) keep the animal within the Lot;
(c) carry the animal when it is on the Common Property;
and
(d) take such action as may be necessary to clean all areas of the Lot or the Common Property that are soiled by the animal.
The approval of the Owners Corporation cannot be unreasonably withheld.
Option C
No animals are permitted, with the exception of a guide dog or hearing dog.
If no option is selected, then Option A applies by default.
Until now, these strata by-laws which are set out in the Strata Schemes Management Act have been in place to govern how strata units and common property areas can be used such as allowing pets.
However, this collective decision making by the majority of strata owners and occupiers for “in-house” by-laws comes under threat as a recent court decision has overridden the principle of accepting what the majority of owners have agreed as a by-law for pets and instead set a precedent.
If this legislation is passed by government, strata owners and occupiers will no longer have the democratic right to decide how best they co-exist within their strata scheme and create by-laws tailored to their strata building.
NSW Court of Appeal decision on pet by-laws
On 12 October 2020, the Court of Appeal of the Supreme Court of New South Wales handed down its decision in Cooper v The Owners – Strata Plan Strata Plan No 58068 [2020] NSWCA 250. The Court of Appeal ruled that a by-law of the Horizon Building in Darlinghurst, that provided an outright ban on pet ownership, was oppressive and in contravention of section 139(1) of the Strata Schemes Management Act 2015 (the Act).
The Court of Appeal decision overturned the particular by-law that was in dispute and provided a general ruling about how the law on “harsh, unconscionable or oppressive” is to be applied. The ruling states that a by-law can be oppressive if it limits the ability of an owner to use their property, without exception or qualification, on a basis that has no connection to the impact on other lot owners.
The ruling sets an important precedent across New South Wales whereby a ‘no pets’ by-law will likely be deemed oppressive and have no force or effect. Where parties are unsure or disagree about whether a particular by-law is oppressive, they may apply to the NSW Civil and Administrative Tribunal to decide the matter. NSW strata schemes may therefore be better placed to avoid having a blanket ban on pets and instead include a by-law that allows pets in their strata scheme subject to certain conditions (similar to Option A and B above).
We recommend Owners Corporations to carefully review their by-laws following the Court of Appeal decision. Alternatively, contact your Sydney strata manager or speak to The Strata Collective to learn more about pets in strata schemes NSW.