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Posted by Ingrid McKellar General Property Law

STRATA SCHEMES AND SCHNAUZERS

A series of recent decisions in NSW courts and tribunals have drawn attention to a legal debarkle (mis-spelling intended) – if you are the owner-occupier of property in a residential strata plan, can the owners corporation ban you from keeping a pet at your property? The law is not as clear for such residents as it is for tenants of residential property.

Two high profile disputes have seen one property owner take the owners corporation of their strata plan to the New South Civil and Administrative Tribunal (NCAT) over a by-law preventing them from keeping a pet on their property (Roden v The Owners-Strata Plan No 55773 [2019] NSWCATCD 61) and another taken to NCAT by the owners corporation of their strata plan seeking an order that they remove a pet from their property (Owners – Strata Plan No 58068 v/ats Cooper [2019] NSWCATCD 62). Both owners successfully argued that by-laws placing a blanket ban over keeping pets in a strata plan contravened section 139(1) of the of the Strata Schemes Management Act 2015 (SSMA), which states “[a] by-law must not be harsh, unconscionable or oppressive”.

Both owners corporations then took the dispute to NCAT’s appeal panel where such by-laws were not found to be “harsh, unconscionable or oppressive”, resulting in the initial decisions being set aside and the by-laws permitted to stand (The Owners – Strata Plan No 55773 v Roden; Spiers v The Owners – Strata Plan No 77953 [2020] NSWCATAP 95; The Owners – Strata Plan No 58068 v Cooper [2020] NSWCATAP 96).

One of owners then appealed, bringing their dispute before the Court of Appeal (Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250). The Court took a different approach to NCAT, stating the power of an owners corporation to make by-laws is constrained to the purposes identified in section 136 (1) of SSMA, under which “[b]y-laws may be made in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme”. Using this principle, a by-law that limits owners’ property rights will only be valid if it protects other occupants’ use and enjoyment of their own properties and the strata plan’s common property. A by-law banning pets in a strata plan has the effect of limiting one party’s rights, but has no effect on how other occupants of a strata plan use and enjoy their own properties and, subsequently, it was found that this owner could keep their pet schnauzer in the property.

In the wake of this decision, the second owner will reportedly be appealing to the same court.

The fight may not be over yet. There are still other avenues owners corporations wishing to prohibit pets may pursue:

  1. They can seek leave to appeal to the High Court of Australia; or
  2. They can lobby state Parliament to enact legislation that expressly allows an owners corporation to impose a blanket ban on keeping pets in a strata plan.

While these disputes arose in high rise apartment complexes in Sydney, any further developments in this area could still have implications for pet owners living in strata plans in regional New South Wales. It is also important to note that, at this time, no owners corporation can legally prevent an occupier from keeping an assistance animal (as defined in the Commonwealth Disability Discrimination Act 1992) on their lot or any common property of a strata plan.

Get in touch with a member of the Cheney Suthers team with any of your property law or animal law enquiries.

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