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.
EmbedAdrian Mueller Partner + Senior Lawyer JS Mueller & Co Lawyers E. adrianmueller@muellers.com.au 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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