THE MINIATURE SCHNAUZER STANDING UP AGAINST ‘NO PET’ BY LAWS

02 JUN 2020

 

HE HAS PERSONALITY AND CLASS – HE IS ANGUS, THE MINIATURE SCHNAUZER STANDING UP AGAINST ‘NO PET’ BY LAWS

Do you want an apartment lifestyle but don’t want to leave your furry friend behind? Can an Owners Corporation ban you from having a pet?

NCAT’s recent decision has just made this more possible than ever

Background

In late 2019, the NSW Civil and Administrative Tribunal handed down a decision in the matter of Owners — Strata Plan No 58068 v/ats Cooper (2019) which specifically concerned the validity of a ‘no pets’ by-law. In this case, the owners corporation of the Darlinghurst strata in question sought to remove a well trained dog named Angus who belongs to one of the strata owners as well as impose a penalty against the owners for non-compliance with a notice to comply for their failure to remove the dog.

What was the outcome of Owners — Strata Plan No 58068 v/ats Cooper (2019)?

The Tribunal considered all factors including the nature of the pet, its personality and behaviour and came to the conclusion that the orders sought were ‘unjust’, ‘unconscionable’ and ‘oppressive’. The Tribunal considered that it would be more appropriate to rely upon the amenity and conduct by-laws to regulate pets in the strata scheme. Lastly, the Tribunal made note that a ‘no pets’ by law contravened section 139 of the Strata Schemes Management Act 2015. Hence, both applications were unsuccessful.

Can I have a pet in my Strata?

Technically yes… but it depends. The Tribunal essentially invalidated the use of a sweeping ‘no pets’ rule. As a result, comprehensive precedent has been created to deal with future cases containing this kind of oppressive behaviour. The express ruling of the tribunal makes it clear that future challenges by pet owners are likely to be successful and invalidate ‘no pets’ by laws.

Strata schemes are still able to impose a ‘no pets’ by-law however its success if contested is what has been significantly decreased. It is likely that since the decision of this Tribunal, strata schemes will attempt to create a by-law that imposes criteria and conditions for maintaining a pet in the strata scheme which could still mean that your pet is unable to reside in the strata.

When can’t I have pets in my Strata?

Notwithstanding the above, there are exceptions. This case has generally strengthened pet owner’s rights in relation to keeping pets in their strata, the Tribunal did however make allowances for valid circumstances where the ‘no pet’ by law is considered objectively reasonable. This includes small schemes, strata schemes with high tenant turnover and instances where the owner has been provided ample notification of the ‘no pets’ by-law and has agreed in writing to accept the by-law and not make a claim to the contrary.

It is important that any prospective buyers carefully read the relevant by-laws in relation to pets as they continue to evolve before assuming that they can maintain a pet in their strata as a result of this case.

If you require more information on the above please contact Ben Wong on bwong@marsdens.net.au or Peter Crittenden on pcrittenden@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.

Posts you may find interesting

News

POSTED: 20 Nov 2020
The High Court has recently ruled in the case of Deguisa v Lynn [2020] HCA 39 that registered proprietors of a residential property in Adelaide were not bound by a restrictive covenant because the covenant had not been notified on the Certificate of Title.
Read more
Announcement icon

COVID19 UPDATE: we are open for business as usual.