On 19 May 2023, Mr Smith* made an application to the Owners Corporation of his strata complex for approval to keep his pets, two dogs and a bird, in his apartment. The scheme had a by-law which prohibited the keeping of more than one pet. Mr Smith’s request was denied by the Owners Corporation despite his pets being well-mannered, quiet and not disruptive to other lot owners’ use and enjoyment of their lot and common property. Mr Smith approached Carneys’ team of strata lawyers Sydney to assist with an to the NSW Civil and Administrative Tribunal (NCAT) to overturn this decision.
Happily, with the assistance of the Carneys team, our client was successful and is now able to keep their pets in their home.
This comes after the seminal case of Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 (Cooper) in which a by-law which placed a blanket ban on pets was held to be oppressive. The Strata Schemes Management Act 2015 (SSMA) was amended by the Strata Schemes Management Amendment (Sustainability Infrastructure) Act 2021 (the Amendment) by inserting section 137B which goes to the keeping of animals.
Section 137B(1) provides that a by-law has ‘no force of effect to the extent that it would unreasonably prohibit the keeping of an animal on a lot’. Section 137B(2) provides that:
It is taken to be reasonable to keep an animal on a lot unless the keeping of the animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property.
It is our view that section 137B(2) provides a test that is to be applied to each animal that a lot owner wishes to bring into their lot. This interpretation is supported by Tribunal’s comment in the recent case of Bruce v The Owners – Strata Plan No. 98803 [2022] NSWCATCD 83:
The expression “an animal” in the by-law and sections 137B or 157 of the Act uses an indefinite article followed by “the animal” which drafting directs consideration to the particular animal that is the subject of an application in a given case.
A lot owner who wishes to install a fish tank is not prohibited from having multiple fish. In the same way, a lot owner should not be prohibited from keeping 2 birds or, for that matter, a cat and dog or any other combination of pets.
Accordingly, by-laws restricting the number of animals in a lot are likely invalid.
If you require assistance from an experienced strata solicitor in relation to a pet dispute, contact the Carneys Legal team of Strata Lawyers Sydney today. We consult with both lot owners and owners corporations to ensure compliance with the abovementioned amendment to the Strata Schemes Management Act.
*Names have been changed for anonymity
