Strata schemes can no longer ban pets

13/10/2020
A big case was finalised yesterday in relation to the Strata Management Act.

The case

The case settled that a by-law creating a blanket ban on pets in a strata scheme is invalid on the basis that such a by-law is oppressive. The decision in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 that a by-law totally prohibiting pets in a strata scheme is invalid was premised on the following points of law:
  1. Owners in a strata scheme are the holders of a freehold estate. This means that each lot owner also holds a bundle of property rights relating to their lot.
  2. Keeping a pet within a lot is a property right that cannot be constrained by a by-law passed by an owners corporation, even if the by-law has been passed unanimously.
  3. A blanket ban on pets (through a by-law) prevents a lot owner from exercising their own property rights and brings no material benefit to other lot owners.
  4. A by-law that prohibits owners from keeping a pet within their own lot is oppressive and invalid.

 

What this means

It is unlawful for owners corporations to put a blanket ban on pets.

 

The context

More than 1 million Sydney-siders lived in strata in 2011, and it is estimated that within 20 years half of the NSW population will live or work in a strata or community scheme (Associate Professor C. Sherry, Strata Title Property Rights – Private Governance of Multi-owned Properties [Routledge, 2017] pp. 131,142 & p 10).

“A liberal democracy is not a majoritarian dictatorship; it operates under legal constraints designed to protect minorities from oppression.”

– Justice of Appeal John Basten, who ruled on the decision

“The decision upholds Judge Basten’s ideal about preventing oppression and is a positive step towards such protection,” shares MLC strata solicitor Jake Edwards.

“It provides certainty to those in our community who, in a more and more dislocated world, now have a clear understanding of their right to enjoy the care, love, and affection that a pet can bring. It will undoubtedly help to build positive mental health outcomes, and help fight the 21st-century malaise of social isolation.”