Pets in Strata Buildings

David Bannerman

Pet ownership in strata buildings is a controversial issue. Benefits can include increased property values and rents associated with pet friendly buildings and health benefits associated with pet ownership. Downsides can include disharmony arising from disputes over pet ownership and increased cleaning and maintenance costs for common property areas. Whether amenity of a strata building is positively or negatively impacted by that ownership depends on who you ask.

The issue is only loosely regulated, by way of model by-laws, which can be changed. Broadly:

  • For schemes registered prior to 1 September 1997, the Strata Schemes Management Act 1996 provides in effect that the scheme will have a by-law, unless and until changed, to the effect that the keeping of pets without owners corporation consent is prohibited, but that owners corporation consent must not be unreasonably withheld.
  • For schemes registered on or after 1 September 1997, the Act in effect provides for adoption of a model by-law regarding pet ownership, involving selection of one of three options, ranging from outright prohibition to prohibition without owners corporation consent, which must not be unreasonably withheld.
  • The proposed new Strata Schemes Management Act, expected to commence in early 2016, is expected to provide for a new model by-law that will allow cats, small dogs, birds and fish without permission and all other pets with permission, which cannot unreasonably be refused.

It is important to appreciate that:

  • Schemes are not required to adopt or maintain these by-laws. Schemes can and frequently do make by-laws on different terms.
  • Guide dogs and hearing dogs represent a special category, section 49(4) of the Act prohibiting a by-law restricting these. The NSW and Commonwealth anti-discrimination legislation may operate more broadly than section 49(4) and provide a basis for challenge of by-laws restricting other types of assistance animals.
  • By-laws are not the only regulation of pets. There are other relevant laws, such as the Companion Animals Act 1995.
  • Where the pet owner is a tenant. The Residential Tenancies Act 2010 and the tenant’s lease will also be relevant.

Issues faced by owners corporations and lot owners/occupiers include:

  • For owners corporations, how best to regulate pet ownership within the building. In our view, where pet ownership is to be permitted, a by-law is essential, but not sufficient and the owners corporation should also consider developing a pet management policy addressing a range of issues, including issues specific to the particular building.
  • For owners/occupiers, how best to approach the owners corporation for consent to pet ownership, where it is required and can be given. In some cases, there will be an outright prohibition and consent cannot be given. In other cases, the owners corporation will have particular requirements, regarding the material to be included in the application for consent, the pets and the arrangements for the keeping likely to be approved or both. Owners/occupiers should investigate these before preparing and lodging their applications.
  • In all cases, how best to resolve disputes. Typically, this would involve mediation or if unsuccessful adjudication in the NSW Civil and Administrative Tribunal.

 

***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.

For more information, please visit our website.