Recent re-interpretations and rulings on pet by-laws in NSW, not to mention much-needed updating of the basic strata laws behind them, have left a lot of pet owners scratching their heads.
In short, last year the NSW Court of Appeal ruled that blanket “no-pets” by-laws were invalid because they were harsh, unconscionable and discriminatory.
However, a tribunal (NCAT) in Sydney ruled that a “no-dogs” by-law which allowed cats was different and therefore permitted.
And somewhere in the mist of all that, the NSW Parliament has passed a law that says pets can’t be “unreasonably” banned – and has formed a committee to decide what “unreasonable” means.
And a major report by the Australian Housing and Urban Research Institute has issued a report that says, basically, the allowing pets is good for renters and tenants alike.
Add to the confusion, the fact that that every state has its own strata laws, and therefore by-laws and interpretation of them, and you can see how this has ended up a dog’s breakfast of laws, by-laws, facts, fictions and often strongly held opinions.
Fortunately our very good friend Amanda Farmer, strata lawyer extraordinaire and host of the YourStrataProperty website and podcasts, has given us a succinct rundown of the state of play of all the various pet laws and by-laws in our states and territories.
And we should note at the start that no strata scheme anywhere in the country can exclude registered assistance animals.
Common law (cases): blanket bans are invalid because they are oppressive (Cooper, CA)
New Section137B SSMA, due to commence 24 August 2021 at latest: a by-law is invalid if it unreasonably prohibits the keeping of an animal.
Legislation: A by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme.
Common law (cases): blanket bans and restrictions on number and weight are unreasonable
Legislation: by-laws (“rules”) can’t be discriminatory
Also, since March2020, landlords cannot prevent a tenant keeping pet: a landlord must present a reasonable argument to VCAT – within 21 days of being advised about the pets – as to why the tenant can NOT have the pet, for it to be included as part of that tenant’s lease.
Common law: pet bans are discriminatory
The Tribunal can make an order allowing an animal on specified conditions OR prohibiting the keeping of an animal IF it is satisfied the strata company (aka owners corporation or body corporate) has acted unreasonably in its decision-making about the animal.
SA – pets permitted with consent. Application can be made to Tribunal if a decision to refuse a pet is “unreasonable, oppressive or unjust”
An owners’ corporation cannot unreasonably withhold consent to keep a pet.
There are no restrictions on buildings making by-laws banning pets. Cases seeking to overturn pet bans have failed.
A by-law is void if it is unreasonable.
So now you know – at least until the next pet-lover or loather decides to test their state’s laws and their scheme’s by-laws or rules.