Introduction
Keeping pets in NSW strata properties can be complex due to changing strata laws and regulations. Around 69% of Australian households own a pet, and another 15% want to.
Tenants are allowed to own pets in NSW strata properties, provided that the pet does not ‘unreasonably interfere’ with another tenant’s use and enjoyment of their lot or common property.
Cooper v The Owners – Strata Plan No 58068
Strata Plan 58068 is a 43 storey strata scheme in Darlinghurst, Sydney known as The Horizon, which had a strict blanket ban on animals being kept in the building, courtesy of by-law 14, which at the time provided:
“…an owner or occupier of a Lot must not keep or permit any animal to be on a Lot or on the Common Property”
Despite the by-law, a number of the lot-owners in the Horizon kept animals in their respective units, including Mrs Cooper who purchased her lot in 2015, and lived with her 14-year old miniature schnauzer, Angus.
On 12 October 2020, the New South Wales Court of Appeal unanimously declared by-law 14 invalid as it was beyond power, and harsh, unconscionable or oppressive in breach of the Strata Scheme Management Act 2015 (NSW) (‘Management Act’).
The following principles are of particular relevance:
- owners in a strata scheme are the holders of a freehold estate, meaning each lot owner also holds a bundle of property rights relating to their lot;
- keeping a pet within a lot is a property right that cannot be constrained by a by-law passed by an owners’ corporation, even if the by-law has been passed unanimously;
- a blanket ban on pets prevents a lot owner from exercising their own property rights and brings no material benefit to other lot owners;
- a by-law that prohibits owners from keeping a pet within their own lot is oppressive and invalid.
As Fagan J articulated at [88]:
“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. By law 14.1 thus interferes with lot holders’ use of their real property in respect and to an extent that is unjustified by any legitimate concern of others in the building”
Where to from here?
On 24 February 2021, the NSW parliament passed the Strata Schemes Management Amendment (Sustainability Infrastructure) Act 2021, which provides that in NSW, owners corporations will not be able to unreasonably deny permission for residents to have pets.
Nevertheless, a ban on certain pets may still be permitted.
It may also be possible for certain strata schemes to justify a “no pets” by-law. For instance, a very small strata scheme with many absentee landlords could lead to unreasonable costs granting permissions for each pet.
It is likely that many strata schemes will now treat pet ownership on a case-by-case basis, rather than impose blanket pet bans.