Is it harsh not to allow dogs in strata schemes?

 

Many people are given a rude shock when they move into their newly purchased strata lot and are told that they cannot have pets (dogs), with the exception of assistance animals.

Under the Strata Schemes Management Act 1996 (NSW) it was possible to have by-laws which banned pets except in respect to assistance animals.

With the reforms to the strata legislation effective as of November 2016, the no pets by-law was removed from the standard default by-laws as well as the introduction of Section 139 (1), which states:

139 Restrictions on By-laws
(1) By-law cannot be unjust
A by-law must not be harsh, unconscionable or oppressive.
(Note: Any such by-law may be invalidated by the Tribunal see section 150)

With such an addition to the legislation, comes the tribunal cases to test if having a pet would be considered a right and the restriction of such a right would be considered to be harsh, unconscionable or oppressive. In some cases it was found that such a by-law would impinge on the rights of lot owners. This makes for a difficult position for a strata manager attempting to guide their owner’s corporation when addressing such by-laws.

If the position of the tribunal was one of allowing lot owners to have pets and to restrict would be against a “lot owner’s basic right of habitation”, Owners Corporations would have to be advised of such when having discussions with their strata manager about the most appropriate by-laws for their scheme.

There has been a change however, with the Appeals Panel of the NSW Civil and Administrative Tribunal publishing three recent decisions setting aside as wrong previous decisions striking down no pet by-laws in May 2020. In essence, what this means is that in the three cases that had gone before the Tribunal, the decision was made that the no pets by-laws were harsh, unjust or oppressive and on appeal, this decision (in all three cases) was overturned.

Rather than adopting an approach that all no pets by laws are a breach of s139 (1), the appeals considered more than simply if the by-law was oppressive to that owner but on a case by case basis what the terms of the by-law were, the history of the by-law, the circumstances in which the by-law came to operate on various lot owners and the particular circumstances of the applicant that might otherwise demonstrate the by-law is harsh, unconscionable or oppressive. Confused? Yes, so are many strata managers.

With these appeals heard and decided on the various facts, an Owner’s Corporation may now have more of a chance to uphold their no pets by-laws, particularly where the by-law has been in place for a significant period of time and/or where the by-law was in place prior to the pet owning lot owner purchasing their lot.

As always, it is recommended that the Strata Managing Agent refer the lot owners to specialised strata lawyers to gain a clearer understanding of their legal rights and obligations when interpreting the legislation and case law.

Are you interested in Strata? ACOP offers strata licence courses.