This article about the end of “No Pets” buildings in NSW has been provided by Adrian Mueller, JS Mueller & Co Lawyers.
In at least two recent cases, NCAT has decided that “no pets” by-laws are invalid. Where does this leave “no pets” buildings?
Introduction
In February 2018, NCAT handed down its decision in Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19. In the Yardy case, NCAT held that a by-law banning pets was invalid because it was harsh, unconscionable and oppressive in breach of section 139(1) of the Strata Schemes Management Act 2015.
Since the decision in Yardy, NCAT has overturned other “no pets” by-laws for the same reason including in a case involving The Elan building in Kings Cross.
So where does this leave “no pets” buildings? And are by-laws banning pets no longer worth the paper they are written on?
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The Yardy Case
The Yardy case concerned a residential apartment building in Sydney. Up until 2009, the building was governed by the standard model by-law concerning the keeping of animals. This by-law allowed owners and occupiers to keep animals with the consent of the owners corporation which could not be unreasonably withheld.
In 2009, the owners corporation changed the by-law to prohibit the keeping of animals. This decision was made in response to problems that had been created by the keeping of one or more pets in the building.
In 2015, Mr and Mrs Yardy adopted a Maltese Terrier rescue dog called Baxter. In early 2017, the Yardys were interested in buying an apartment in the building and keeping Baxter in the apartment. They inspected the building and observed that the model keeping of animals by-law (which had been changed in 2009) was displayed on the noticeboard. The Yardys also obtained a pre purchase strata report which mistakenly indicated that the model keeping of animals by-law
applied to the building.
A Dispute Erupts
In February 2017, the Yardys bought their apartment and thought they would be able to keep Baxter in the apartment with them. In mid-2017, the Yardys were told about the change that had been made to the model keeping of animals by-law in 2009 and that they would not be able to keep Baxter with them.
The Yardys applied to the owners corporation for permission to keep Baxter and that request was rejected. The Yardys then requested that the owners corporation change the keeping of animals by-law to allow them to keep Baxter and that request was also rejected.
The Yardys then applied to NCAT to invalidate the “no pets” by-law claiming the by-law was harsh, unconscionable and oppressive.
NCAT’s Decision
NCAT held that the “no pets” by-law was unjust and was therefore invalid.
NCAT reached this conclusion for several reasons. NCAT said that an owner’s basic habitation rights now include the right to keep a pet in their apartment in the light of contemporary community standards. NCAT also observed that the “no pets” by-law imposed a complete prohibition on the keeping of pets with no exceptions and no ability for the owners corporation to consider the special circumstances of a particular owner or occupier which may make it appropriate to allow that person to keep a pet. NCAT also considered that the by-law was unbalanced and did not permit a consideration of the interests of all owners rather than just the interests of owners who do not want pets in the building. For those reasons, NCAT declared that the “no pets” by-law was invalid because it was harsh, unconscionable and oppressive in breach of section 139(1) of the Strata Schemes Management Act 2015.
NCAT, therefore, revoked the “no pets” by-law and revived the model keeping of animals by-law that had been in place up until 2009. Further, NCAT granted the Yardys permission to keep Baxter in their apartment.
The Elan Case
More recently, the media reported on anther decision by NCAT overturning a “no pets” by-law. That decision was made on 20 September 2019 and related to The Elan building in Kings Cross. NCAT concluded that the “no pets” by-law which was made in 2013 and continued the “no pets” policy that had existed since the inception of The Elan as a strata building was invalid because it was harsh, unconscionable and oppressive. NCAT followed the reasoning in the Yardy case.
You can read more about the Elan case here: Pet owners in Kings Cross apartment building overjoyed as ban on animals overturned.
What Now for “No pets” Buildings?
Where do the Yardy and The Elan cases leave “no pets” buildings?
Are by-laws prohibiting the keeping of animals no longer worth the paper they are written on? There are doubts that the Yardy and The Elan cases were correctly decided particularly in relation to a “no pets” by-law that was introduced by a developer or an owners corporation before the commencement of the Strata Schemes Management Act 2015 on 30 November 2016. This is because prior to 30 November 2016, the model by-laws that could be adopted by a developer or an owners corporation included a “no pets” by-law.
If, at the time, a developer or an owners corporation introduced a “no pets” by-law, the model “no pets” by-law existed, then it is difficult to see how the “no pets” by-law could be invalid. The position is less clear in relation to “no pets” by-laws that have been introduced since the commencement of the Strata Schemes Management Act 2015. That is because by-laws that are made under that Act cannot be harsh, unconscionable or oppressive and there is some merit in an argument that a by-law which prohibits altogether the keeping of pets is harsh because it does not give any owner or occupier an opportunity to apply for permission to keep an animal in the light of their particular circumstances.
Further, can it really be said that an owner’s basic habitation right now includes the right to keep a pet in their apartment in the light of contemporary community standards? What about the basic habitation rights of owners who want to live in a pet free building?
Conclusion
The jury is still out on whether or not “no pets” by-laws are valid.
An appeal has been lodged in The Elan case meaning NCAT, through its Appeal Panel, will be called on to decide the issue again. So we have not heard the last of this issue given its importance to many strata buildings across the State.
We expect to see more cases in which this issue is debated until the uncertainty in this area is resolved by either the Appeal Panel of NCAT or the Supreme Court.
Have a question or something to add to the article? Leave a comment below.
This post appears in Strata News #292
Read next:
Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E. adrianmueller@muellers.com.au
W. http://muellers.com.au/
P: 02 9562 1266
Disclaimer: The information contained in this article is provided for your personal information only. It is not meant to be legal or professional advice nor should it be used as a substitute for such advice. You should seek legal advice for your specific circumstances before relying on any information herein. Contact JS Mueller & Co for any required legal assistance.
This article has been republished with permission from the author and first appeared on the JS Mueller & Co Lawyers Lawyers website.
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Model by-laws embedded in the act allow each owners corporation to make the decision. Is it not beyond the power of NCAT to over-rule the power granted by the statute?
Verbal diarrhoea ad nauseam….
Animal rights activists are quick to gloat about this NCAT decision but hopefully it will be overturned by a superior court. Stratas everywhere should band together and fund an appeal. If critical By Laws designed to protect members of Stratas can be cut down so easily what is the point of making any By Law ?
Many Stratas have a ”no pets” By Law in place after bitter experience with animals and their owners in the confined area of a Strata. The rules are there for a REASON and if individuals find that not to their liking they may always leave the building or buy elsewhere.
Animal faeces on stairs, noise, smells, and the potential for legal action against the Strata when pets attack visitors or other persons are just some of the risks inherent in this ill-considered decision by NCAT. In one instance in Randwick animal faeces and urine was washed down from one lot to another below on an daily basis. Totally ridiculous.
Pets can vary between being ”well behaved” dogs, cats, hamsters, mice, birds or even a snake to animals that make most residents lives a misery most of the time. Where are the controls ? – where are the rules ? Why should the private whim of a wannabe pet owner transcend the rights of all ? Where is the public interest in this debate ?
Clearly the NCAT does not trifle with questions of public interest. It is preoccupied with confecting arguments to dismantle the protections that have been laboriously established at often considerable cost to Stratas.
It is cruel in the extreme for animals to be locked up within units or flats all day while their owners go to work and leave water and food (maybe) in a bowl on the floor – when the animal reacts by howling for hours – there is simply no way to shut it up. What goes on in an individual lot inevitably impacts upon other lots in the Strata.
The NCAT decision makes a mockery of the governance of Stratas in NSW where apparently anything now goes . Stratas should be able to make rules that protect their members and their interests and majority views MUST prevail. Apparently the NCAT is more concerned with facilitating naked private interest.
There is nothing harsh with Stratas endeavouring to govern their buildings in the interests of the majority of their members. What is harsh is the cavalier attitude of members of quasi-judicial bodies making decisions that impact directly and adversely upon the lives of those who live within the Strata system of NSW. Capricious decisions do nothing to enhance public good will.
Meanwhile the ”responsible” Minister presumably stands by idle twiddling his thumbs – perhaps this is a golden opportunity for the State Government to save some money – abolition of the NCAT would save many thousands of taxpayer dollars.
Its high time the State Government ceased to treat residents in Stratas’ as 3rd class citizens.
It’s about time these draconian laws are being dealt with. I have two screaming children thumping around living above me, I’d much rather it be a pet because the owner must abide by the pet by-law conditions. Buildings need to update their blanket no pets by-law or you will be challenged one day.
My block is now pet friendly and we all love it, everybody adheres to the by-law conditions because nobody wants the disharmony or to be in breach. There is now more social interaction which is great, particularly for the elderly who can’t live without their pets and nor should they have to.
We all live like sardines in Sydney anyway, I am 6 feet away from a neighbours house with a barking dog which I have to live with. As many people don’t have children, having a pet means everything and taking away this freedom certainly is harsh, unconscionable and oppressive. Wake up and move with the times.
It invalidates the by law. you cant make a by law that is harsh or oppressive and a no pets by law is both
Dear Harry,
would you care for some cheese to go with your whine?
you sound like you care more about making money.
there are other by laws in place to take care of problematic animals
Sorry to hear this Kerri. After 2 choices of buying a unit in NSW, we did find a Strata that allows small animals. Strata has the defining YES/NO not the government! In NSW. As of this moment there are 3 ANIMALS IN OUR 6 UNIT BLOCK ALL OF WHOM ARE VERY WELL TRAINED & FRIENDLY. plus OWNERS STICK TO THE COMMON RULES REGARDING ANIMAL WASTE on COMMON PROPERTY & NOISE! However, I can sympathise with anyone living in a unit with animal owners that do not accept strata Laws need to be followed!
Dear Harry, I always take my dogs to puppy school (done this over many years) to be educated, socialised ,always on a lead, dogs must not poo on the unit grounds, always in the street & the poo picked up in nappie sack & disposed in the unit general waste bin! Consequently dogs & neighbours become very friendly I always have a certificate to prove my dogs training & registration & the cost has been minimal! I believe all strata’s should request a Certificate from the owners,for desexing, registration papers from local council for the dog, Owning a pet in a unit has problems if the owners are not trained! Good luck Harry set a few Council rules!
Every strata block must have a charter for keeping companion animals! The strata & ALL residents must come together re pets then pet owners must sign a a binding oath to comply with the strata rules for keeping pets! ie, cats are not allowed to roam, dogs must be trained to be quiet, owners must pick up all poo on the property & on the streets, dogs must always be on a lead inside & on the grounds. owners must provide details of desexing & vaccination etc etc.
Ridiculous ruling!!
Firstly, barking dogs are a disturbance to the peaceful enjoyment of another lot owner. By-law 1, Noise.
Secondly, who is liable if the dog bites another lot owner or a visitor? Who pays for the ambulance, medical costs and for the bodily disfigurement of scar/s, the Body Corporate or the dog owner? Where a dog causes a disturbance, mental stress, fear of the animal, loss of income due to injuries from the dog and the cost of litigation, is it not harsh, unconscionable and oppressive.to injured lot owner or a visitor?
Thirdly, who is liable for loss if the lot owner loses potential buyers because there is a dog or dogs owned by renters or by other lot owners ?
Why in hell should other lot owners who don’t want dogs, fear dogs be placed in difficult personal position of having to approach dog owners to advise them to keep their animal quiet, to face angry hostility or affray from dog owners? Why should they have to spend their precious time and hard earned income to litigate against disturbance of their right to peaceful enjoyment of residing in their lot properties. How oppressive is this? How unconscionable is this? Absolutely ridiculous!!!
My wife and I have had our own bad experience with draconian attitudes of our strata committee. In our case they chose to ignore the evidence we produced of our dog being an assistance animal (for my wife) soon after us moving in to a small strata group of 12 residences across 3 distinct buildings, all with individual contained and lockable yards.
We arrived at Tweed Heads from Adelaide soon after introduction of SSMA legislation that had clear requirements for assistance animals not being refused yet the committee (with support of the strata managing agent) ‘played’ with us trying to make it as difficult as possible for us, it would appear, in order that we remove the dog.
We endured discriminatory behaviour before being subjected to a notice to remove the dog or be fined, with this situation ending up at NCAT Tweed Heads where orders were made in our favour including costs. This all came with hefty legal bills that are currently under assessment of the Supreme Court due to the committee’s resistance to ‘pay up’.
Our committee even tried to introduce a by-law (without owner consultation) on controls for keeping assistance animals after being unsuccessful at NCAT to ‘get back’ at us. Thank goodness owners rejected it at the AGM saving the likely further action that would have followed to have it made invalid.
Accordingly, we are so pleased to read about successful cases such as Yardy and Elan (Yardy was raised in our matter).
Going forward, we intend to continue our fight to have our by-laws reviewed for effectiveness, including the keeping of animals, and will soon seek orders for our strata’s harsh, unconscionable and oppressive ‘no pets’ by-law to be made invalid at NCAT.
How do these NCAT cases impact on building with a ‘special By-Law’ voted in by majority, changing the standard By-Laws inhibiting keeping of pets?
At last some sanity prevails in the vexed issue of pets in strata-controlled buildings!!
I live in Noosa Heads Qld where many people live alone and either own or occupy apartments. Noosa is also known as ‘God’s waiting room’ with a median age roughly 12 years above that of the rest of the State, and has more property businesses (and bodies corporate) per square inch than you can poke a stick at.
Draconian by-laws around pets prevail, just because it’s easier that way and people don’t like change. The State Govt is reviewing strata laws but it’s slow. Meanwhile all the research concludes that having a pet boosts mental and physical health as we age, providing companionship and reducing social isolation, a major problem in the community.
If you’re a pet-loving or pet-owning renter in Noosa, forget it! One has to find an old house in the hinterland with acreage if you wish to share life with a dog, cat or budgie.
It’s high time a national approach was adopted on this issue, as we become an ageing nation.