Keeping animals in high density housing has long been a pet peeve of zealous Strata Schemes and Owners Corporations. Until recently, many enforced blanket bans on pets, preventing residents from sharing their abode with a furry or feathered friend. However, lockdowns imposed by COVID brought the issue to the fore once again, and in late 2020, the Supreme Court overturned blanket bans on pets as ‘harsh, unconscionable or oppressive.’
Insights spoke to building and construction lawyer Ciro Figaro to explore what the case involved, and how this Supreme Court ruling will impact property lawyers and residents.
One small step for a schnauzer, one giant leap for by-laws
It all began with a miniature schnauzer named Angus. Ten years old and weighing in at less than ten kilograms, Angus’s owner bought an apartment in Darlinghurst, unaware of the “no pets” by-law imposed by the Owners Corporation.
“The Owners Corporation of a building can create or vary by-laws to regulate and administrate the building,” explained Ciro. “This is why strata law affects the everyday lives of every person living in a multi-unit building.”
Despite the default “suggested” position allowing pets, pending approval by an Owners Corporation, many have opted for blanket pet bans imposed by their by-laws.
“This was often done to reduce the risk of nuisance,” explained Ciro.
However, according to section 139(1) of the Strata Schemes Management Act 2015, by-laws cannot be “harsh, unconscionable or oppressive.”
“Since 2015, the Tribunal has made various rulings regarding the blanket ‘no pets’ by laws,’ with reference to this provision,” said Ciro. “Finally, in the landmark decision of Cooper v The Owners — Strata Plan No 58068 [2020] NSWCA 250, the Court of Appeal stated that the Horizon’s blanket no-pets by laws were oppressive and therefore invalid. This is because the bans prohibited animals without qualification, even where a pet would create no hazard, nuisance or material annoyance to others. This was found to conflict with the rights of all owners to the use and enjoyment of their homes.”
A win for good dogs in high rise homes
Ciro regards the decision as a victory for good dogs – and other companion animals – across Australia.
“High legal costs prevented this kind of matter from reaching the Court of Appeal until now,” said Ciro. “It’s clear that unjustified pet bans in apartments will no longer be legal, which is great news for Angus and all animal owners.”
This means blanket no-pet by laws can be declared invalid by the Tribunal. Indeed, the decision has prompted the proposal of legislative amendments, via the Strata Schemes Management Amendment (Sustainability Infrastructure) Bill 2020. This bill proposes a new Section 137B(1), which states that: A by-law has no force or effect to the extent that it purports to unreasonably prohibit the keeping of an animal on a lot.
“In any event, lot owners and tenants must still supervise their pet, clean any common property that is soiled, and ensure their pet is not noisy or negatively impacting on other residents,” noted Ciro. “Even if a strata scheme allows pets, a tenant always needs their landlord’s permission before an animal is permitted.”
Different states impose different rules
Rules regarding pets differ depending on the state and territory
In New South Wales, Queensland, Tasmania, the Australian Capital Territory and the Northern Territory, prior written permission is generally required from the Owners Corporation before animals are allowed on a property.
“However, this permission cannot be unreasonably withheld,” explained Ciro.
“In Victoria, the default position permits animals unless the Owners Corporation requires otherwise, due to an issue with the animal or by adopting a different by-law,” said Ciro. “While tenants must request permission from their landlords to bring a new pet to the property, this permission cannot be unreasonably refused.”
South Australia has also eased their laws regarding pets, with Owners Corporations empowered to allow pets upon approval.
“In Western Australia, pets are allowed unless the Owners Corporation states otherwise,” said Ciro.
According to Ciro, this mild variations in pet regulations likely reflect the density of populations across Australia’s states and territories.
Living in harmony with furry and feathered friends
Following this ruling, Ciro expects Owners Corporations to shift their attitudes when it comes to pets.
“In my opinion, when you live in a multi-unit apartment, you need a certain level of tolerance as a resident,” said Ciro. “As Australians often grow up in a house or cottage, this can be a challenge.”
With more and more people working from home in semi-permanent arrangements, pet ownership has hit new highs.
“Being permitted to have pets is becoming more like a human right, especially as we work in increasing isolation,” said Ciro. “The Court of Appeal‘s ruling has balanced those rights against the unsubstantiated concerns regarding nuisance or danger caused by pets. Where a pet is well-behaved, it should be allowed to reside.”
Ciro noted that nuisance provisions already exist in the Strata Schemes Management Act 2015, without an additional need for pet-specific regulations.
“As a proud owner of one small border terrier and two lazy cats, I wholly agree with the Court of Appeal’s judgment,” said Ciro. “While my complex is tolerant towards pets, it goes without saying that I would always fight for them! It’s good to see that we’re moving towards a position like Italy, France, Germany and other civil law countries, where unless there is a problem with a pet, there is no problem.”