Blanket Bans on Pets in Units (NSW)
A common issue for those living in apartments that are managed by a strata scheme is whether the body corporate can lawfully forbid unit owners and other occupants from keeping a pet at the property. This issue was the subject of a decision of the New South Wales Court of Appeal in the matter of Cooper v The Owners in 2020. This page outlines that decision and its implications for the law on keeping pets in units in New South Wales.
Legislation
The Strata Schemes Management Act 2015 is the Act that regulates strata schemes in New South Wales.
Strata schemes
A strata scheme is a building or group of buildings divided into lots with shared ownership of common areas. It is managed by an owners’ corporation under a strata scheme, which must include by-laws. The owners’ corporation may elect a committee to manage the scheme. The by-laws may be amended by a special resolution of the committee.
Cooper v the owners: the facts
In Cooper v The Owners, the applicants were the owners of a unit in Darlinghurst, Sydney. A by-law scheme stated that animals must not be kept on the property. The applicants had a miniature schnauzer, which they were asked to remove from the property.
They applied to the NTCAT for a declaration that the by-law was invalid on the basis that the blanket prohibition on keeping pets was harsh, unconscionable or oppressive.
Harsh, unconscionable or oppressive
Under section 139 of the Strata Schemes Management Act 2015, a by-law must not be ‘harsh, unconscionable or oppressive.’
Procedural steps
NTCAT upheld the applicants’ claim and ordered the owners’ corporation to remove the by-law and pay the applicants’ costs.
The owners’ corporation appealed to an appeal Panel of NCAT. The Appeal Panel set aside the tribunal’s orders and ordered the applicants to remove the dog within 28 days.
The applicants then appealed to the Court of Appeal.
The court’s decision
The court considered the purpose for which by-laws are made.
The Act confers the power to make by-laws for the benefit of lot owners. A by-law that restricts the lawful use of property and does not have a rational connection with the lawful enjoyment of other lots and the common property falls outside of the powers to make by-laws.
The applicants are entitled to use and enjoy their property within the confines of the law. The blanket prohibition on keeping any animal is broad enough to prevent lot holders from using their lots in ways that could not rationally affect other lot owners.
The keeping of specific types of animals can be dealt with through other types of provisions.
The convenience for the owners’ corporation of a blanket ban on animals does not justify the interference with the rights of lot owners.
The court unanimously found against the owners’ corporation.
No blanket bans on animals
The consequences of this decision are that strata schemes can no longer impose blanket bans on keeping animals. On 24 February 2021, the NSW government amended the strata title legislation to state that owners’ corporations may not unreasonably deny permission to keep pets.
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