The NSW Court of Appeal has ruled in favour of Angus the Schnauzer, as apartment buildings can no longer create by-laws prohibiting animals.
The positives of pet ownership.
Australia has one of the highest rates of pet ownership in the world, and it may be about to get even higher. Research shows that pet ownership can have a number of physical and psychological health benefits. People have reported to have lower blood pressure, lower cholesterol, increased physical activity, a strengthened immune system as well as decreased feelings of depression and loneliness. Studies have also shown that people who have pets display the ability to deal with stress better when compared to non-pet owners.
For residents of apartments or properties under strata title, having a pet may have been previously off the table. However, in a recent decision in the NSW Court of Appeal, those restrictions will no longer apply.
Pets and apartment living
The recent decision in Cooper v the Owners Strata Plan No 58068 [2020] NSWCA 25, means apartment buildings can no longer create by-laws prohibiting animals.
The Court of Appeal has found that by-laws placing a blanket ban on pets breaches section 139 (1) of the Strata Schemes Management Act 2015 (NSW), which states that a by-law must not be “harsh, unconscionable or oppressive”. This landmark decision is fantastic news for pet lovers and is thanks to the tenacious owners of Angus, the Schnauzer.
Joanna and Leo Cooper are lot owners of an apartment building in Darlinghurst, known as The Horizon. The Horizon had a by-law which stated that an apartment owner must not keep or permit any animal to be in an apartment or on the common property. The Cooper’s originally had success in the NSW Civil and Administrative Tribunal (NCAT). NCAT found the blanket ban on animals to be invalid. This decision was overturned by the Appeal Panel of the Tribunal where it was found that a blanket ban on animals was valid as the owner was taken to have assumed the responsibilities and obligations of the by-laws upon purchasing the apartment. This decision was ultimately overturned by the Court of Appeal.
Justice Fagan said the prohibition provided no material benefit to other occupiers of the building in their use or enjoyment of their own apartments or of the common property.
“In an apartment building such as The Horizon, an animal could be kept within a lot without creating the least interference with other lot owners,” he said.
“The by-law is oppressive because it prohibits the keeping of animals across the board, without qualification or exception for animals that would create no hazard, nuisance or material annoyance to others.”
What about tenants?
Whilst this decision is a win for animal loving unit owners, the same cannot be said for tenants. As tenants would be aware, pet friendly rentals are few and far between and are particularly limited in unit complexes.
There is no term in the Residential Tenancies Act 2010 (NSW) prohibiting a renter from keeping a pet, or requiring they ask for their landlord’s consent, however, many landlords include a clause in their tenancy agreement restricting pets.
We hope that the recent decision to allow unit owners to bring pets into their home is a step in the right direction for renters and landlords alike. We want to continue to see changes in the future which prevents landlords from placing blanket bans on tenants keeping pets – one could argue this is “harsh, unconscionable and oppressive”.
Owner’s corporations should review their by-laws
It would be prudent for owner’s corporations to review their by-laws and consider making amendments in relation to the keeping of animals. The Court of Appeal provided guidance on what may be considered as a valid by-law relating to pets.
These were:
- A by-law permitting an owner to keep an animal subject to it remaining on the owner’s lot and under supervision at all times; or
- A by-law permitting an animal to be kept within a lot or common property subject to the consent of the owner’s corporation.
As for Angus the Schnauzer, we are sure he’s looking forward to living out the rest of his days legally, and in peace, enjoying his Harbour views at The Horizon.
How can Attwood Marshall Lawyers help?
Our experienced team of property and commercial lawyers can assist you in drafting and amending by-laws. With this recent decision shining a light on pet ownership in apartments, now is the opportune time to consider amending by-laws and ensuring your by-laws clearly outline the rules that owners, tenants and visitors must follow.
