New strata laws on pets and animals
Attention pet lovers (and the not-so-much pet lovers)! There may well be more furry additions coming your way to your nearest strata building soon.
From 25 August 2021, the amendment to the Strata Schemes Management Act 2015 (NSW) prevents a blanket ban on pets in a strata scheme. Section 137B of the Act effectively nullifies a by-law to the extent that bans or prohibits the keeping of animals in a strata scheme unless it “unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property.”
“Unreasonably interference”
So, what does “unreasonably interferes” mean under the new legislation?
Under regulation 36A of the Strata Schemes Management Regulation 2016 (NSW), the circumstances of an animal causing unreasonable interference are to include situations 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 repeatedly runs at or chases another occupant, a visitor of another occupant or an animal kept by 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 repeatedly causes damage to the common property or another lot, or
- the animal endangers the health of another occupant through infection or infestation, or
- the animal causes a persistent offensive odour that penetrates another lot or the common property, or
- for a cat kept on a lot – the owner of the animal fails to comply with an order that is in force under the Companion Animals Act 1998, section 31, or
- for a dog kept on a lot—
- the owner of the animal fails to comply with an order that is in force under the Companion Animals Act 1998, section 32A, or
- the animal is declared to be a menacing dog or a dangerous dog under the Companion Animals Act 1998, section 34, or
- the animal is a restricted dog within the meaning of the Companion Animals Act 1998, section 55(1).
Takeaway
Bear in mind the new legislation was introduced after the now famous (or infamous) Court of Appeal decision of the Coopers / GoFundMe case. In a nutshell, the owners corporation cannot ban an animal if there is no possible detriment to the common property or others. The ban or the by-law should have some benefit (to the common property or others). The by-law cannot just dictate a matter against the keeping of an animal unless it causes some material and unwanted impact or interference with a view in preserving or enhance common property or the amenities.
The new legislation is win for pet owners but it remains largely untested in the Tribunals (can’t wait). As we were in the strata space for a very long time, frankly, it does not do much other than emphasising the need to exercise general common sense (in this instance) when a pet application or issue is decided upon in a strata scheme and be demonstrated as such. The onus is for the opponent of the animal keeping to give reasons that there is an unreasonable interference. Unfortunately, there are still interpretive problems in the new provisions (which are also reflected in the Fair Trading publications online). For example, it says it allows the owners corporation to refuse a pet application but many of the circumstances “clarified” in the Regulation are practically difficult to demonstrate when the animal under the pet application has not entered the building yet.
Ultimately, what is considered as “unreasonable interference” will need to be assessed carefully on a case by case basis by the owners corporation (or strata committee) in the circumstances as the case presents. The legislation cannot substitute the necessary assessment or judgement in these matters (well, unless it goes to Tribunal, or the Court of Appeal again). And also, a by-law can STILL reasonably regulate matters in the keeping of an animal, and you’ll be pleased to know that our pets by-law can cover whatever spectrum that is within the newly allowable limits of the strata laws, as needed of course.
More Information
Please contact our Strata Team at Matthews Folbigg Lawyers on 9635 7966 if you would like advice or assistance.
Article written by Eadz Tang. Email: Eadzt@matthewsfolbigg.com.au
