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There’s been a lot of fluff and kerfuffle around the recent publishing of an NCAT decision from earlier this year concerning a little dog called Baxter and an owners corp that had brought in a no-pets rule.
As reported in this story and elsewhere, Baxter’s owners took their owners corp to the Tribunal (NCAT) where the Member ruled that the strata scheme’s no-pets by-law failed the test of not being “harsh, unconscionable or oppressive”.
Why did they make that ruling? You can read the entire transcript of the case for yourselves.
As ever, things are not quite as simple as they seem, not least because, when Baxter’s owners first viewed the apartment with a view to buying it, they saw an out-of-date by-law on the noticeboard that gave them the impression that they would be allowed to have a dog.
But let’s get down to the nitty-gritty: Does does this mean that apartment blocks can’t ban pets and are anti-pet by-laws invalid?
We think not. Basic NCAT rulings do not create a legal precedent, even within NCAT. Each case at the initial level is supposed to be judged on its own merits.
NCAT Appeals decisions do hold some sway but Baxter’s case was never appealed, possibly because the majority of owners in his block didn’t mind the idea of Baxter being around.
A general meeting had discussed an amendment to the by-law that would have allowed him to stay and a majority of owners were in favour.
A majority, but not the 75 per cent required to change the by-law. You can guess the same majority did not wish to waste another skerrick of time, money or energy on fighting a decision with which most of them agreed.
So where does that leave pet owners who want to buy into a scheme that has a no-pets by-law? Should they just move in anyway, then drag their new neighbours to NCAT to have the by-law invalidated?
For a variety of reasons, we’d say no. NCAT does not have the power to change the law and Fair Trading is quite clear in its Strata Living guide online that by-laws can ban pets.
“Each strata scheme has its own by-laws, which are a set of rules that owners, tenants and, in some cases, visitors must follow,’ it says here. “They can cover issues such as whether pets are allowed on the scheme …”
And consider this, if you had someone in your scheme who had bought in because you didn’t allow pets, and they couldn’t tolerate the idea of living near animals, possibly for health or religious reasons, wouldn’t a change to the by-laws to allow pets be “harsh, unconscionable or oppressive” to them?
Also, if you had a much-loved cat or dog, and you’d found the apartment of your dreams but the building banned pets, would you seriously think it was a good idea to force them to change their rules to suit you?
If you got to NCAT, you might just come across a Member who was more inclined to expect owners to read the by-laws and abide by them, than start rewriting the rulebook.
Here at Flat Chat, we have been staunch supporters of having pets in apartments (in fact, Flat Chat was started, indirectly, thanks to a dispute over pets).
But we are also strong believers that you should live by the by-laws of your building until such times as the majority of owners can be persuaded to change them or they are proved to be invalid.
We don’t think properly written by-laws that restrict the ability of people to keep pets are invalid, whatever NCAT said about Baxter.
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