Reports that the NSW Tribunal has once again overturned a no-pets by-law has sent a ripple of concern through Strataland – especially among blocks that in the past decided the easiest way to manage the pet issue was not to allow any.
On at least two occasions this year, Senior Members of the NSW Civil Administrative Tribunal (NCAT) have ruled that blanket bans on pets were “harsh and unconscionable” and therefore invalid.
It’s Section 139(1) of the Strata Schemes Management Act 2015 (SSMA) that says by-laws must not be “harsh, unconscionable or oppressive”. This section only came into effect as of 30 November 2016 when the SSMA commenced and was not in the previous strata legislation that had been around since 1996.
“These recent decisions,” says Jessica Bates, a Senior Associate with this website’s sponsors Sachs Gerace Broome Lawyers, “suggest that the Tribunal is more inclined to invalidate a longstanding no-pets by-law rather than decide that it is valid and, therefore, enforceable.
“This is despite the SSMA including a clause (clause 4(2) of Schedule 3) stating that a by-law continued in force by the SSMA is taken to still be valid if it was valid immediately before 30 November 2016.”
So where to from here for strata schemes with the recent rulings overturning no pets by-laws? Jessica Bates has some practical suggestions.
“If there are currently no owners or occupiers pushing for a change to the no pets by-law, then a strata scheme may decide to do nothing for now and simply maintain the status quo,” she says.
“On the other hand, a proactive strata scheme may decide the writing is on the wall, so it is better to amend the no pets by-law now rather than wait for a dispute to arise.
“If the Tribunal is going to invalidate no pets by-laws and such decisions are not overturned on appeal, then owners corporations need to consider how best to manage the introduction of pets into a building previously not having any pets,” she adds. “The focus needs to be on how to best protect the common property and other owner and occupiers”.
“I think the main concern would be dogs, as cats can quite easily live within a lot and never be seen by other owners and occupiers, except when in a cage travelling to and from the vet.”
She says matters that owners corporations may wish to consider when amending their no pets by-laws include:
- Whether they wish to impose conditions on the breed and/or size of dog permitted to be kept by residents;
- Whether there are areas of the common property on which dogs should not be permitted;
- The imposition of conditions relevant to the pet travelling on common property.
On the first issue, some research may be necessary to determine the best breed or size of dogs for apartment living.
“Many years ago I watched an episode of Dr Harry on TV and he said that large dogs are actually well suited for apartment living, provided they are walked twice a day,” she said. “If a large dog barks less than a small dog, then this may be an important consideration when determining whether or not to impose a condition on the size of dog permitted.”
On the issue of dogs being allowed onto common property, there would need to be a good reason for preventing such travel and it would need to be seen to be a reasonable restriction.
“Obviously, it would be fair and reasonable to allow a dog to travel from the lot to the carpark of the building (including in the lift) so the owner or occupier can put the dog in their vehicle to then leave the strata scheme.
“However, if the building has a pool, then presumably it would be reasonable to restrict a dog from accessing the pool area.”
When it came to pets travelling through common property, it would be reasonable to require smaller animals such as cats to be in cages; smaller dogs could be carried across certain areas of the common property and all dogs must be on a lead and kept away from other owners or occupiers (particularly where some people have a fear of dogs) including when travelling in lifts. Potentially the dog would need to travel in the lift only when there was no one else in it.
“The requirement to clean up after the pets and to be liable for damage to common property caused by the pets would be important and mandatory conditions,” she said.
Ms Bates’ suggestions also included the creation of a register of pets maintained by the owners corporations or strata managing agents on their behalf.
She also suggested a “three strikes” condition so that there was a process of written warnings to deal with non-compliance with the by-law before a notice to comply with the by-law or application to the Tribunal for removal of the pet was required.
And she floated the idea of a bond or similar payment from pet-owners to account for the potential increased cost of repair and maintenance of the common property as a result of pets being permitted in the strata scheme.
Finally, Ms Bates suggests schemes looking to make changes to their existing no pets by-law (or to adopt a new pets by-law) could use Option B of model by-law 5 in Schedule 3 of the Strata Regulations (below) as a starting point, with additional conditions added into the existing wording.
“Overall, the focus will need to be on imposing conditions in a pets-permitted by-law that are outwardly seen to be fair and reasonable (and are not harsh, unconscionable or oppressive) so as to avoid the amended pet by-law itself being invalidated,” she said.