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What a pet friendly by-law needs to cover

 

There are many choices to be made: Will it be ‘open door’ or ‘case-by-case’? Will it be ‘one pet or two’? Will it limit the breeds and weights? And what restrictions will apply to prevent a nuisance, hazard or loss of enjoyment for other owners and occupiers?

Model By-Law – Keeping of Animals

The starting point is model by-law 5, found in the Strata Scheme Management Regulation 2016 (NSW), which is as follows:

5 Keeping of animals

Option A

  1. An owner or occupier of a lot may keep an animal on the lot, if the owner or occupier gives the owners corporation written notice that it is being kept on the lot.
     
  2. The notice must be given not later than 14 days after the animal commences to be kept on the lot.
     
  3. If an owner or occupier of a lot keeps an animal on the lot, the owner or occupier must:
    (a) keep the animal within the lot, and
    (b) supervise the animal when it is on the common property, and
    (c) take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal.

Option B

  1. An owner or occupier of a lot may keep an animal on the lot or the common property with the written approval of the owners corporation.
     
  2. The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property and must give an owner or occupier written reasons for any refusal to grant approval.
     
  3. If an owner or occupier of a lot keeps an animal on the lot, the owner or occupier must:
    (a) keep the animal within the lot, and
    (b) supervise the animal when it is on the common property, and
    (c) take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal.
     
  4. An owner or occupier of a lot who keeps an assistance animal on the lot must, if required to do so by the owners corporation, provide evidence to the owners corporation demonstrating that the animal is an assistance animal as referred to in section 9 of the Disability Discrimination Act 1992 of the Commonwealth.

Note. Select option A or B. If no option is selected, option A will apply.

Notes:

  • Options A and B automatically apply to strata schemes registered from 1 July 1997, if the developer did not introduce their own by-laws. They also apply to other strata schemes which have adopted the model by-laws as their by-laws by special resolution (75% majority of votes) at a general meeting.
  • Option A is an ‘open door’ by-law for Keeping of Animals. It requires that the owner or occupier notify the owners corporation within 14 days after the animal is kept on the lot.
  • Option B is a ‘case-by-case’ by-law. It requires the owner or occupier to obtain approval from the owners corporation to keep an animal. The approval must not unreasonably be withheld.
  • There used to be an Option C ‘closed door’ by-law in the model by-laws in the Strata Scheme Management Regulation 1997 (NSW) which was:
    Option C

    Subject to section 49 (4) of the Act, an owner or occupier of a residential lot must not keep any animal on the lot or the common property.
    Option C was removed in 2016.
  • Strata Schemes which were registered during the period from 1 July 1997 until 30 November 2016, had to select one of Options A, B or C. Since then, only Options A or B can be selected.

'No Pets’ strata by-laws are no longer valid in NSW

‘No pets’ strata by-laws were valid in NSW until 12 October 2020. That day, the NSW Court of Appeal decided in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 that ‘no pets’ by-laws are no longer valid in NSW.

The Court of Appeal struck down a by-law in the form of Option C, after a challenge made by an owner who wanted to keep a miniature schnauzer dog in their apartment.

The Court ruled that it was beyond the power of the owners corporation to prohibit the keeping of an animal in an apartment. It said that the power to make by-laws was limited “to deal with activities which may adversely affect the amenity of other lots, including the use of common property”. That is, by-laws may legitimately deal with noise, and lay down rules to apply when the animal is on the common property, but not impose a blanket ban on animals.

For my analysis of that decision, see Court strikes down ‘no pets’ strata by-law

Case study: When is it unreasonable for a strata scheme to refuse approval for pets?

As a result of Cooper’s Case, strata schemes which have a ‘no pets’ policy or by-law must now adapt and learn to live with a ‘pet friendly policy’. Option B gives more control to the owners corporation than Option A. If the strata scheme adopts Option B, they must give approval to pets on a case-by-case basis and have conditions for keeping pets.

When giving or withholding approval, the owners corporation must act reasonably. The test for reasonableness was examined by the Appeals Panel of the Civil and Administrative Tribunal NSW (NCAT) in the decision of Strata Committee of Owners Corporation SP 75226 v Ison [2018] NSWCATAP 2 (3 January 2018).

The facts were that the Isons owned a strata unit at Forster, on the NSW Mid North Coast. They had purchased the unit for their eventual retirement. They rented it for holiday rentals for about 20 weeks per year and visited and occupied it for periods during the balance of the year. When they visited, they took with them their two young cavoodle dogs.

A number of the owners of the 22 strata units complained about the dogs “yapping intermittently over a period of a few days”, and a “full-on continuous bark-fest” lasting about 1½ hrs from 9 – 10.30 pm one night.

Option B applied to the strata scheme. After their application for approval to keep the dogs was rejected, the Isons applied to NCAT for an order permitting keeping of animal under s 157 of the Strata Schemes Management Act 2015.

The Appeal Panel of NCAT ordered that approval be given to keep the dogs. It dismissed the objections raised by the owners corporation because it was satisfied there was no real risk of injury or disturbance to owners or occupiers of the strata scheme, for these reasons:

  1. The first objection was that the dogs had caused nuisance through barking. The evidence was that this happened on only one occasion.
     
  2. The second objection was health risks arising from pet dander (which may cause allergic reactions in some people) and the possibility of people (and particularly elderly or disabled people) tripping over dogs, dog-leashes or dog excreta, and thus potentially sustaining serious injuries. There was no evidence of any allergic reaction and no evidence of a single fall resulting from entanglement of leashes or slippage on wet patches. The Tribunal noted that the Isons had agreed that the dogs would not be on common property except to travel from the basement car park to their unit; and whilst on common property the dogs would be kept on a short leash so as to mitigate these risks. The Tribunal concluded that these risks were unlikely to cause harm.
     
  3. The third objection was that a significant number of owners were in favour of a ‘no-pets’ policy, and several had purchased their units because they understood this to be the policy. The Tribunal said that this was irrelevant – there was a ‘pet-friendly’ by-law in place.

What guidelines should apply to ‘pet friendly’ by-laws?

Each strata scheme has the right to pass a by-law to restrict but not ban pets.
The lesson from Ison’s Case is that the guidelines contained in Options A and B do not contain sufficient detail.

There are two areas to focus upon when drafting a pet friendly by-law:

1. What animals should be allowed?

The by-law needs to provide detail to guide decisions by the owners corporation as to when it might reasonably refuse its approval for the keeping of an animal, for the purposes of Option B.

The by-law should list animals allowed, such as:
(i) goldfish or other similar fish in an indoor aquarium;
(ii) one domestic cat or small dog;
(iii) one small caged bird;
(iv) assistance animals.

The by-law should list disqualifications for animals not allowed, such as:

(i) A cat or dog must not exceed approximately 12 kilograms in weight when fully grown, must be desexed and registered;
(ii) A dog must not be vicious, aggressive, noisy or difficult to control [some strata schemes list breeds which are banned such as Rottweilers and Staffordshire terriers].

There should be an application form which requires the owner or occupier to declare that the animal has been trained, been desexed, been vaccinated, been microchipped (provide the microchip number) and if a dog, been registered. A photo should be provided.

2. What conditions should apply when the animal is on common property?

Both Options A and B require an owner or occupier “to supervise the animal when it is on common property”. Restrictions and conditions are needed, such as the owner must ensure that:

(i) The animal must be accompanied at all times;
(ii) The animal must be appropriately tethered or kept caged and under control;
(iii) The animal must not cause any noise which is disturbing to an extent which is unreasonable;
(iv) The owner is responsible for damage to or loss of property or injury to any person caused by the animal;
(v) The owner is responsible to clean up after the animal has used the common property.

The law for approval and removal of animals in a strata scheme

Whatever by-law is adopted for pets, the Strata Schemes Law gives owners and the owners corporation legal backing to approve and remove animals.

If the owners corporation refuses approval to keep an animal, then the owner or occupier may obtain an order from the Tribunal (NCAT) to keep the animal under s 157 of the Strata Schemes Management Act 2015 if:

  1. “the by-laws permit the keeping of an animal with the approval of the owners corporation and provide that the owners corporation cannot unreasonably withhold consent to the keeping of an animal; and
     
  2. the owners corporation has unreasonably withheld its approval to the keeping of the animal on the lot or common property.”

If the owner or occupier is keeping an animal in breach of the by-law, the owners corporation may obtain an order from the Tribunal (NCAT) for removal of, or taking of appropriate action against the animal under s 158 of the Strata Schemes Management Act 2015. The Tribunal will make an order:

“if the Tribunal considers that the animal causes a nuisance or hazard to the owner or occupier of another lot or unreasonably interferes with the use or enjoyment of another lot or of the common property.”

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