For apartment owners, whether or not your apartment complex allows you to keep a pet is a decision which is extremely important. Where the by-laws of a strata scheme prevent an owner from keeping a pet, a common question asked by these owners is “is this legal?” and “what harm can come to the owners corporation provided my pet is not loud or unruly?”.
These are questions which the NSW Courts and Tribunals have been tasked with answering on a number of occasions, and more particularly whether a blanket-ban on pets in strata schemes was ‘harsh, unconscionable and oppressive’.
In the decision of Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250, the NSW Court of Appeal held that a strata scheme by-law which provides 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’ was invalid. This was due to the stance that it restricts the lawful use of a lot and the enjoyment of common property. The Court analogously compared how a goldfish in a fishbowl could create a material annoyance to warrant a disturbance.
Accordingly, from 25 August 2021, recent amendments to the Strata Schemes Management Act 2015 (NSW) now make clear that prohibiting the occupancy of an animal is not permitted (subject to some notable exceptions). Generally, a strata scheme cannot prohibit the keeping of a pet unless the pet ‘unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property’.
Section 36A of the Strata Management Regulations 2016 (NSW) provides a multitude of circumstances in which an animal may unreasonably interfere with another occupant’s use and enjoyment of that occupant’s lot or the common property. Specifically, it may not be unreasonable for a strata scheme to prohibit the keeping of an animal where:
- the animal makes a noise that persistently occurs to the degree that the noise unreasonably interferes with the peace, comfort or convenience of another occupant; or
- the animal attacks or otherwise menaces another occupant, a visitor of another occupant or an animal kept by another occupant; or
- the animal causes a persistent offensive odour that penetrates another lot or the common property; or
- the animal repeatedly runs at or chases another occupant, a visitor of another occupant or an animal kept by another occupant; or
- the animal repeatedly causes damage to the common property or another lot.
Notwithstanding the legislative change, however, Owners Corporations are urged to reconsider and repeal any existing by-laws which blankly prohibit pets. Such by-laws will no longer have legal effect.
These reforms aim to create a transparent and inclusive system of pet ownership in strata schemes. For apartment owners, and more particularly pet lovers, this is a step in the right direction and a great comfort when renting or purchasing within an apartment complex.
If you require further information about the recent reforms to NSW Strata Laws or on the provisions of keeping pets in strata schemes, please do not hesitate to contact our Property Department on (02) 4626 5077.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
