Can You Let the Dogs Out? Blanket Prohibition on Pets in a Strata Scheme
If you live in an apartment building, you may find that your Strata Scheme contains a by-law that prohibits owners from keeping any animal on the lot or common property. While disputes in relation to such by-law are seldom heard of, a recent NSW Court of Appeal case found that a by-law which imposes a blanket ban on pets in a strata building was invalid. The Court’s justification is expounded below.
Photograph by Nancy Guth
Background of the Case
The Coopers kept a dog in their apartment unit at The Horizon. This contravened the existing By-Law 14 at the time, which states that “an owner or occupier of a Lot must not keep or permit any animal to be on a Lot or on the Common Property”. The commenced proceedings in the NSW Civil and Administrative Tribunal (NCAT) to invalidate the by-law, which was successful. However, the Owners Corporation subsequently appealed the NCAT’s decision, prompting the Coopers to seek leave to appeal on the basis of a question of law.
Court of Appeal Decision
Amongst other facts and issues, the Court considered two provisions within the Strata Schemes Management Act 2015 (NSW). The judiciary found that a by-law which restricts the lawful use of a lot, but lacks the “rational connection with the enjoyment of other lots and the common property” is a contravention of Section 136 of the Act.
In this case, having a pet on the particular lot did not disrupt or cause annoyance to other occupiers, hence prohibiting such pet did not actually improve the enjoyment of those occupiers.
The Court also held that the by-law is considered oppressive under Section 139, regardless of whether it is adopted and maintained by the majority of occupants in the building. It is inconsequential that a specific by-law may be irrelevant to some lot owners (e.g. lot owners without pets), all by-laws are binding on all lot owners including prospective occupiers.
The Court ordered for the by-law to be removed and the removal was applied retrospectively from its registration date.