Haven’t we always been able to keep pets?
No. Under the 1996 version of the Strata Schemes Management Act ‘the Act’, an option existed ‘known as ‘Option C’ that allowed an Owners Corporation to refuse to allow any Lot Owner or Tenant to keep an animal in the Lot or on common property.
In 2016, the Regulation changed to remove Option C from the template By-Laws that many Plans choose to adopt, however Owners Corporations already in existence at the time of the update of the Act kept their existing By-Laws although they had to do a By-Law review and consider whether to amend their by-laws. Those Strata Plans that registered prior to 1 July 1997 were given a slightly modified and updated set of By-Laws.
The 1996 Act prevented by-laws from restricting the use of guide or hearing dogs at a strata property. Previous legal precedent has also determined that a pet trained to assist persons with a Disability or other health related condition could keep the pet provided it had documents to certify this was the case and/or that the pet is listed on the Companion Animals Register.
Essentially though, an Owners Corporation had the right under the 1996 Act to create a By-Law to dictate whether or not the Owners Corporation wanted to allow residents to keep one or more pets (with the only limitation to this power being a restriction on the banning of the presence of a guide or hearing dog).
The 2015 Act and Regulation came into force on 30 November 2016.
What was the outcome of the latest Court case?
A decision was handed down on 12 October 2020 in the NSW Court of Appeal in the matter of Cooper v The Owners – Strata Plan No 58068 which invalidated a By-Law that contained a strict prohibition on the keeping of animals at a property (such as Option C).
The subject in this case is an owner in a 43 storey Apartment building in Darlinghurst seeking to keep a miniature schnauzer in a Plan that contains a variation of the Option C By-Law, restricting the keeping of pets other than those considered an Assistance Animal as referred to in section 9 of the Disability Discrimination Act (1992).
There exists in the 2015 Act a phrase that prevents an Owners Corporation from having any By-Law that can be considered “harsh, unconscionable or oppressive” and the judgement found that the By-Law in place was unlawful and thus invalid, allowing the owners to keep their pet dog. It is noted that the by-law in question had been approved by the Owners Corporation when the 1996 Act was in place, it was invalidated in accordance with the requirements of the 2015 Act.
The Owners Corporation in this case still have the ability to further appeal to the High Court of Australia.
What does this mean for my Strata Plan?
If you aren’t sure whether ‘Option C’ or a variation of is in place in your Strata Plan that seeks to restrict the keeping of animals at your property, please contact your Strata Manager for clarification.
It is now clear that By-laws that seek to prohibit the keeping of animals in a Strata Plan will be overturned if challenged by an owner or occupant in your Plan. We would recommend working with a lawyer conversant in Strata law to amend the existing By-Law and include a set of terms and conditions under which an animal may be kept. It should be noted that those in breach of the terms and conditions may still be subject to having an animal removed from the property if there is an ongoing breach of the By-Law.
Those Strata Plans that do allow the keeping of an animal are unaffected directly by this Court precedent however reading the case law that leads to the judgement does give useful guidance to those seeking to prepare a By-Law to comply with the precedent. A copy of the case law can be found by clicking on the following link:
Does this affect Community Title Properties?
Not directly. The relevant sections of the Act quoted as part of the judgement do not form part of the Community Land Management Act however the overall intention of the judgement may be referred to as a reference case if the keeping of animals is disputed in a Community Title case.
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