The legal fight for pet ownership rights in strata buildings has just taken a major setback. In a series of highly contentious matters, the New South Wales Civil & Administrative Appeals Panel (‘Appeals Panel’) has overturned previous NCAT decisions that gave lot owners a ‘basic habitation right’ to keep pets in strata buildings.
Background
On 27 May 2020, the Appeals Panel handed down its decisions in Cooper and Roden.
The appeals were brought by major strata towers being The Horizon, Darlinghurst and The Elan, Rushcutters Bay to challenge the tribunals decision that by-laws which entirely prohibited pet ownership were ‘harsh, unconscionable and oppressive’ and therefore invalid.
It also sought to challenge that such by-laws were contrary to an owner’s basic habitation rights, their use and enjoyment of their lot.
Can the Owners Corporation ban pet ownership?
- Generally, the Owners Corporation may pass by-laws at their annual general meeting that deals with pets. They can also expect the lot owners to comply with those by-laws. However, there are numerous restrictions on the content by-laws are passed such as it cannot be harsh, unconscionable or oppressive.
- See section 139 (1) of the Strata Schemes Management Act 2015
- A tribunal has the power to invalidate a by-law if it believes the Owners Corporation did not have the power to make that by-law or that the by-law is harsh, unconscionable or oppressive.
- See section 150 of the Strata Schemes Management Act 2015
Factors considered by the Appeal Panel
The Appeal Panel recognised that a by-law which has a blanket ban on pet ownership can be considered harsh, unconscionable or oppressive for the purposes of section 139 (1). But it is an objective test that is determined on the following factors:
- the terms of the by-law.
- the history of the by-law.
- the circumstances in which the by-law came to operate on various lot owners (including the circumstances in which any lot owner acquired a legal interest in property in the strata scheme); and
- the particular circumstances of the applicant that might otherwise demonstrate the by-law is harsh, unconscionable or oppressive.
- In the Roden Appeal, the by-law that prohibited pet ownership was validly passed in 2013 by an absolute majority (81%). But The Horizon’s body corporate accepted that circumstances had occurred which made it appropriate for those with existing animals to be able to retain them. However, moving forward, new animals would not be permitted.
- In the Cooper Appeal, it was revealed that Mrs Cooper knew, before she purchased her lot, of the existence of a by-law preventing the keeping of animals. Evidence was accepted that the dog was concealed in a bag when entering and leaving the building and was caught urinating on common property by a surveillance device.
The outcome
The Appeals Panel found in favour of the two strata towers. It accepted that:
- the fact a by-law prohibits the keeping of animals does not, of itself, mean that the by-law is harsh, unconscionable or oppressive.
- there is a variable scale of severity, whether the expression “harsh, unconscionable or oppressive” is read collectively or disjunctively and/or whether the section operates in different circumstances.
- the degree of severity is higher than the standard of “unreasonable”.
What does this mean for pet owners in strata schemes?
- If you are looking to purchase a lot in a strata scheme, it is important that you get legal advice before you exchange contracts, to ensure that you are aware of all the by-laws that could affect your happiness and way of living.
- If you are already living in a lot where a strata scheme applies, you should familiarise yourself with the by-laws that apply to your pets and raise any concerns at the Owners Corporations next annual general meeting.
What does this mean for Owners Corporations?
Whilst these decisions may encourage you to pass by-laws that prohibit pet ownership, it is still open for a tribunal to find them unjust if it does not satisfy the objective test.
The circumstances of your strata scheme may be distinguishable from these decisions.
Get in touch
If you are a pet owner or you are managing a strata scheme and would like to know more about how this affects you, please contact us.
Author – George El-Mourani, Graduate At Law
