This article on what to do about your by-law prohibiting pets has been provided by Adrian Mueller, JS Mueller & Co Lawyers.
How will you respond to the recent decision of the Court of Appeal in the Cooper case which says that a by-law prohibiting pets is invalid? Will you wait for the dust to settle before deciding what you will do? Or will you act now and change any by-law that prohibits pets? In this article, we take a closer look at each of these approaches and recommend why playing the waiting game could be your undoing.
Introduction
On 12 October 2020, the NSW Court of Appeal concluded that a by-law prohibiting the keeping of pets in the Horizon building in Sydney is invalid. This decision means that any “no pets” by-law is invalid. So where does this leave an owners corporation which has a “no pets” by-law? And what should an owners corporation with a “no pets” by-law do?
The wait and see approach
There are many owners corporations that intend to wait for the dust to settle following the decision in the Cooper case before deciding on what they will do about their “no pets” by-law. Indeed, some of these owners corporations take the view that their “no pets” by-law is valid until it is overturned by NCAT or a Court. So, the “no pets” by-laws in these buildings will remain for the time being.
The Proactive approach
There are other owners corporations that are getting on the front foot. These owners corporations are replacing their “no pets” by-law with a new by-law that restricts the keeping of pets and imposes conditions on owners and occupiers who are allowed to keep pets under the new by-law. Most of the new by-laws introduced by these owners corporations will require owners and occupiers to apply to the owners corporation for permission to keep pets, prevent the owners corporation unreasonably withholding that approval and contain conditions (sometimes extensive) which pet owners will need to comply with.
What to do?
So which approach is to be preferred? The wait and see approach or the proactive approach? In our view, the owners corporations that are doing nothing about their “no pets” by-law are making a big mistake. This is because a “no pets” by-law is not enforceable. This invites trouble. Why? Because if an owner or occupier brings a pet into a “no pets” building there will be virtually nothing the owners corporation can do about it. If the owners corporation decides to belatedly replace the “no pets” by-law, after the owner or occupier brings the pet into the building, it will be too late to rely on the new by-law to insist on the pet being removed from the building. An owners corporation in that position could end up getting stuck with pets that are brought into the building whilst the unenforceable “no pets” by-law remains.
Conclusion
The preferable approach is for any owners corporation that has a “no pets” by-law to replace that bylaw as soon as possible with a new by-law that reflects the contemporary views of owners and, if appropriate, restricts (but does not prohibit) the keeping of pets in the building and requires owners and occupiers who want to keep pets to apply for approval of the owners corporation to do so and contains reasonable conditions that regulate the keeping of pets that are approved by the owners corporation. This is the approach that is to be preferred following the decision in the Cooper case. Any owners corporations that wait for the dust to settle following that decision before changing their pets by-law may well live to regret that decision.
This post appears in Strata News #427.
If you have a question about how to respond to the by-law prohibiting pets being invalid or something to add to the article, please leave a comment below.
Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E. [email protected]
W. https://muellers.com.au/
P: 02 9562 1266
Disclaimer: The information contained in this article is provided for your personal information only. It is not meant to be legal or professional advice nor should it be used as a substitute for such advice. You should seek legal advice for your specific circumstances before relying on any information herein. Contact JS Mueller & Co for any required legal assistance.
JS Mueller & Co Lawyers has been servicing the strata industry across metropolitan and regional NSW for over 40 years. We are a specialist firm of strata lawyers with in depth and unmatched experience in, and comprehensive knowledge of strata law and levy collection.
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This article has been republished with permission from the author and first appeared on the JS Mueller & Co Lawyers website.
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Is the decision legally enforceable yet? We just received the AGM motions for this year’s meeting and surprisingly they are repealing the current by-law from requiring written permission to keep pets to the below:
By Law XX – Prohibiting the Keeping of Animals:
An owner or occupier of a lot must not bring or keep any animal on the lot or the common property.
An owner or occupier of a lot must not permit any person including any invitee of the owner or occupier to bring or keep an animal on the lot of the common property.
This by-law does not prohibit or restrict the keeping on a lot of assistance animal used by an owner or occupier of the lot as an assistance animal or the use of an assistance animal for that purposes by a person on a lot or common property.
Hi Gab
Adrian Mueller from JS Mueller & Co Lawyers has responded to your comment on this post: NSW: Q&A Keeping Pets in a Strata Building
So what are the NSW strata bylaws now for renters in regards to, landlord stating ‘no pets allowed’ especially in a pet friendly building prior to the Cooper case at Horizon Apartments.
May a landlord still say ‘no pets’ in a lease agreement?
I live in a pet friendly building well ahead of time, [removed] Apartments Wollongong NSW 2500. The stipulations strata committee put on pets, was under 10kg approved on application, if over 10kg seek approval, application may incur a fee if a ‘special meeting needs to be convened’ at [removed] strata; despite application being in well before deadline for next meeting’s agenda, January 2019. [removed] Strata management, had plenty of opportunity to bring it up in meetings, but they chose to just take my money, ignore mentioning it, & then threaten owner & occupier for it’s removal (assistance dog Mind Dogs Australia, over 10kg) despite never receiving complaints from owner occupiers prior to pet application. This is an example of an absent strata committee, being taken for a ride by poor decisions of their strata managing agents.
I think the problem is exaggerated. It seems to me that you overestimate the significance of this event. Moreover, we already went to such a state of affairs, didn’t we? So why are you surprised? Court decisions, in my opinion, will not fundamentally change anything in the lives of pet owners. By the way, since it comes to that, I disagree with you and think that the best solution is to do nothing. Why stir up panic and get nervous ahead of time? But this is just my opinion, I didn’t want to offend or offend anyone. He just said 🙂 I hope everyone will be happy in the end.
Hi, regarding the recent decision to allow pets in to a strata, that has a no pet policy.
We have a small strata ,with a no pet policy, .this by law, was adopted by 75%
Of the until occupier’s. Does the recent ruling trample on their rights, why should a minority enforce their will on a majority. Surely they have the right to live in a no pet environment.
The pet owners have a right to choose to live in a pet friendly area, or, with this recent decision, were there particular reasons that awarded that decision, if so
Under what conditions can a no pet policy still be effective.. thanks.
My experience is that the statutory “Must obtain Approval” irrespective of whether it’s a pet, minor or major renovations and changes to structure and appearance of common property, is regularly ignored by Tenants,by Owners and by Rental Agents for Investment owners who abuse the process of the protocol and cause the Executive Committee of Owners Corporation immense grief, time and effort to pursue rectifications and remedy. This abuse has become so systemic Yet, in pursuing remedy the Committee is expected to jump over hurdles, barriers and through hoops, not to mention the dealings with passive duty of care Strata Managers who don’t give a fig… The Owners corporation committee are expected to run to a Mediation and then to NCAT with its limited powers, all at the cost of the committees precious time and legal costs to the Owners Corporation.. The whole system stinks ! The abusers are laughing at the system.
It is easier to beg for forgiveness than to seek approval.
It’s hard work to issue fines and to follow through but it will make owners think twice before committing another offense.