A Sad Day for Pet Lovers

21 JUL 2020

 

Appeal Successful – A sad day for pet lovers as the NSW Civil and Administrative Tribunal Appeal Panel determines that ‘no pet’ by laws are lawful

The recent decision of The Owners — Strata Plan No 58068 v Cooper which provided that ‘no pet’ by laws were ‘harsh, unconscionable and oppressive’ has been overturned by the appeal panel. Similarly, the decisions of The Owners — Strata Plan No 55773 v Roden and Spiers v The Owners — Strata Plan No 77953 have resulted in negative outcomes for pet owners hoping to keep their pets in their apartments.

Outcome of Appeals

The Owners — Strata Plan No 55773 v Roden

The appeal panel in Roden determined that the Tribunal had wrongfully concluded that the by-laws were harsh, unconscionable and oppressive mainly because the Strata Scheme Management Act does not operate to prevent pet prohibiting by-laws.

Spiers v The Owners — Strata Plan No 77953

In Spiers, the Tribunal found that the by-law was not hidden from the purchaser and the purchaser could have easily chosen not to buy in that strata scheme. The Tribunal also emphasised that the members of the owner’s corporation had clearly agreed in majority for this by-law to operate and therefore should stand to reflect the interest of the majority. Hence, this appeal was dismissed.

In both of the above instances, the appeal panel rejects that the relevant pet by-laws are unconscionable, harsh or oppressive.

The Owners — Strata Plan No 58068 v Cooper

In Cooper, the appeal panel determined that the facts were not sufficient to invalidate the ‘no pet’ by-law and the previous Tribunal had failed to consider all the relevant circumstances.

Unfortunately, these owners were required to remove any pets that were in breach of a pet related by-law from their Strata.

What this means for you – What has changed as a result of the ‘no pet’ by-law appeals?

Essentially, future cases will be judged based on the principles established by the appeal panel. These principles include:

  1. that the test for whether a ‘no pet’ by law is ‘harsh, unconscionable or oppressive’ must take into consideration the context of each individual strata scheme and the relevant members of that community;
  2. the community who occupy the strata scheme should be able to collectively agree to live in a building that has no pets; and
  3. the individual characteristics or particular suitability of a type of pet is not required to be considered by the owners corporation.

Can I legally have a pet in a strata scheme that has a ‘no pet’ by law?

At this point in time, it is very unlikely that if a strata scheme has an enforced ‘no pet’ by law, a court is going to find that it is invalid.

It is recommended that if not having pets in your strata is a deal breaker, then you may wish to consider purchasing elsewhere to avoid any costly legal battles.

If you require more information on the above please contact Ben Wong on bwong@marsdens.net.au or by phoning 02 4626 5077.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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