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A legal factsheet about pets in strata schemes
From Strata Service NSW
Can I keep a pet in a strata scheme?
The by-laws of each strata scheme should explain how an owner or occupier can keep a pet. By-laws that place a blanket ban on keeping pets no longer have any effect and cannot be relied on by an owners corporation.
Broadly speaking, owners and occupiers can keep a pet with permission of their owners corporation.
However, tenants must also look at their tenancy agreement. Landlords are still allowed to refuse pets, even if the strata scheme allows for them. If a tenant has a pet without their landlord’s permission, they may be in breach of their tenancy agreement.
Can I keep an assistance animal (like a guide dog) in a strata scheme?
Neither owners corporations or landlords cannot prohibit the keeping of an assistance animal in a lot. They can ask for evidence such as an assistance animal permit.
Can the owners corporation have an approval process?
An owners corporation can require the completion of a pet approval process before they give their permission to allow a pet. However, there are limits. If they require approval they must:
- only refuse permission for a pet on the basis that it causes an unreasonable interference to another occupant, and
- make their decision about the pet within a reasonable timeframe.
It is arguable that a pet is automatically approved if an owners corporation does not make its decision in accordance with these rules.
Can the owners corporation refuse my pet?
The owners corporation can only prohibit pets if they interfere with another occupant’s use and enjoyment of their lot or the common property. A by-law or a decision under a by-law has no force or effect to the extent that it would unreasonably prohibit keeping a pet.
The owners corporation cannot place a banket ban on pets in their by-laws, nor can they replace a blanket ban with another equally restrictive by-law or application process. However, a by-law that prohibits pets is not harsh, unconscionable or oppressive if it does not unreasonably prohibit pets in the lot.
When can I assume the owners corporation have given their permission for me to have a pet?
An owners corporation is taken to have given permission for the keeping pets in a lot if:
- they made a decision about keeping the pet that involved unreasonable prohibition, or
- they failed to decide on whether to allow the pet within a reasonable time.
Note: ‘reasonable time’ is undefined in the new provisions so watch this space.
What are the circumstances in which keeping a pet unreasonably interferes with another occupant’s use and enjoyment of that occupant’s lot or the common property?
The new regulations set out these circumstances. Some examples include but are not limited to:
- the pet makes a noise that persistently occurs to the degree that the noise unreasonably interferes with the peace, comfort or convenience of another occupant, or
- the pet repeatedly runs at or chases another occupant, a visitor of another occupant or an animal kept by another occupant, or
- the pet attacks or otherwise menaces another occupant, a visitor of another occupant or an pet kept by another occupant, or
- the pet repeatedly causes damage to the common property or another lot, or
- the pet endangers the health of another occupant through infection or infestation, or
- the pet causes a persistent offensive odour that penetrates another lot or the common property.
What approach has the Tribunal taken?
Since Cooper v The Owners – Strata Plan No. 58068 [2020] NSWCA 250, the Tribunal has adopted a very narrow approach towards the keeping pets in strata schemes. For instance, in Roden v The Owners – Strata Plan No. 55773 [2021] NSWCATCD 61, Mr Roden sought to invalidate parts of the pets by-laws in his strata scheme – particularly a $300 application fee as a condition of allowing a pet. The Tribunal rejected Mr Roden’s application stating that a condition or by-law that is ‘reasonable’ was not capable of being harsh, oppressive, or unconscionable and on that basis was a valid by-law. It will be interesting to see if the Tribunal continues to adopt this narrow approach.
What are some issues with the new provisions?
An interpretation issue with the new regulations is that the circumstances listed contemplate that the pet is already on the lot. Arguably, this could mean that the owners corporation must allow the pet on the lot unless and until it unreasonably interferes with another occupant’s use and enjoyment of their lot or common property. We expect some owners corporations to attempt to prohibit animals on an anticipation basis.
The wording of the new regulation suggests it is an exhaustive list, meaning anything not listed would not be deemed a circumstance of unreasonable interference. For instance, personal preferences, fears or allergies should arguably not be taken into consideration and will likely cause controversy in the future.
The circumstances listed under the regulations are subjective and need to be considered on a case-by-case basis. It is very dependent on the mindset of the owners corporation and the sentiment of the other lot owners.
Can I bring a pet on to the lot if I have good grounds to argue that there has been an unreasonable refusal by an owners corporation?
Yes, but this comes with some risk on the part of the occupant as the owners corporation may decide to take action.
An owners corporation may issue a notice to comply with by-laws and if the lot owner fails to comply (by removing the pet), the owners corporation can try and seek an orders from the New South Wales Civil and Administrative Tribunal (‘the Tribunal’) to remove the pet. An owners corporation can also ask the Tribunal to impose monetary penalty of up to $1,100 at first instance for breaching a by-law.
What options do I have in response?
Owners and occupiers can defend the proceedings by making their own application to the Tribunal for an order asking for permission to keep the pet. A tenant needs the written consent of their landlord to lodge this application.
Alternatively, an owner or occupier can commence proceedings as soon as approval is not given and before they bring a pet into the lot, rather than wait for the owners corporation to enforce the by-law. Mediation at NSW Fair Trading should be attempted before an application is made to the Tribunal.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]
This resource is intended as a guide to the law and should not be used as a substitute for legal advice. It applies to people who live in, or are affected by, the law as it applies in New South Wales, Australia and is subject to change.
The legal information contained on this page is current as at 22 October 2021.
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