NSW: Q&A Keeping Pets in a Strata Building

What are the new pet rules for strata in NSW? Did you know that pets still aren’t automatically allowed in NSW strata schemes? Find out why you still need approval and how to go about getting approval from the strata owners corporation for your pet.

August 2021: From 24 August 2021, an owners corporation will not be able to have a by-law that unreasonably prohibits the keeping of an animal on a lot. Further, it will be deemed reasonable to keep an animal on a lot unless keeping the animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property. See the new section 137B of the Strata Schemes Management Act 2015. We have reproduced Schedule 1 Amendment of Strata Schemes Management Regulation 2016 below.

These changes codify the decision of the NSW Court of Appeal in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 in which it was held that a “no pets” by-law is unenforceable. Find out more about this and other changes to NSW strata Legislation here: Important Recent Changes to Strata Laws

Schedule 1 Amendment of Strata Schemes Management Regulation 2016

Clause 36A

Insert after clause 36—

36A Keeping of animals—circumstances of unreasonable interference

For the purposes of the Act, section 137B(3), the circumstances in which the keeping of an animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property are—

1. 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
2. the animal repeatedly runs at or chases another occupant, a visitor of another occupant or an animal kept by another occupant, or
3. the animal attacks or otherwise menaces another occupant, a visitor of another occupant or an animal kept by another occupant, or
4. the animal repeatedly causes damage to the common property or another lot, or
5. the animal endangers the health of another occupant through infection or infestation, or
6. the animal causes a persistent offensive odour that penetrates another lot or the common property, or
7. 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
8. for a dog kept on a lot—

1. the owner of the animal fails to comply with an order that is in force under the Companion Animals Act 1998, section 32A, or
2. the animal is declared to be a menacing dog or a dangerous dog under the Companion Animals Act 1998, section 34, or
3. the animal is a restricted dog within the meaning of the Companion Animals Act 1998, section 55(1).

NSW WEBINAR: Pets In Strata with Adrian Mueller, JS Mueller & Co Lawyers | March 2021

Table of Contents:

• QUESTION: If a by-law states the written approval for a pet is a decision of the owners corporation, does the committee have the power to approval a pet?
• QUESTION: Our owners corporation has introduced a by-law stating owners must carry pets on common property. Is this a valid and reasonable by-law? Some lot owners cannot physically carry their pets.
• QUESTION: We have a keeping of animals by-law stating residents can keep an animal, but not dogs or cats. Is this a reasonable by-law?
• QUESTION: Should the strata manager maintain a pet register as part of the owners corporation records?
• QUESTION: Our strata block has had an application for a pet. We don’t mind about the dog being in the building but want to make sure there aren’t any offending odours from the toileting of the pet. Is there a template bylaw for addressing this?
• QUESTION: A sale was lost because individual lot owners lobbied the strata manager not to approve a pet application from a prospective purchaser. Can the individual lot owners be taken to court by the lot owner who lost the sale?
• QUESTION: We have a bylaw that does not permit pets, with the exception of assistance animals. Is this bylaw acceptable? If not, what do we do?
• QUESTION: How does an owners corporation deal with a barking dog? The dog is upsetting the tranquillity of the residents and the dog owner does nothing to stop the barking.
• QUESTION: When is it OK to say “No Pets in the Apartment”? What are the rights of NSW landlords to stop tenants from keeping pets?
• QUESTION: What are the rules around visitors and non-residents bringing pets onto common property and into the building? This might be friends coming to visit residents or short term letting with Airbnb.
• QUESTION: If a resident is applying for a pet, should the application include a pet overview or a pet resume about what the pet is like? Do they need pet references? What are your best tips for success?
• QUESTION: If lot owners pay a breach of notice fine and keep the pet without complying, can they be fined again?
• QUESTION: Why has no one used the argument that their pre 2016 pets bylaw remains valid due to the schedule 3 transitional provisions of the Act?
• QUESTION: Is a bylaw legal that bans dogs but allows other animals?
• QUESTION: Can we limit the types of animals that are allowed in our strata scheme to domestic animals? Avoiding goats and sheep in most cases?
• QUESTION: Can a bylaw restrict the size of a dog to no larger than 10 kgs and require pets to be carried on common property?
• QUESTION: Can a Pet Bylaw reasonably limit the number of pets you can have in an apartment?
• QUESTION: In a Short Term Rental Agreement where animals are involved, how quickly does the committee need to provide approval?
• QUESTION: Why should owners who select a no pets bylaw have their decision overturned?
• QUESTION: Would it be okay if a NSW pet bylaw required people to get approval from the Strata Committee before they permitted an animal in the building?
• QUESTION: Can a “no pets” bylaw be valid on the grounds of resident’s allergies? Can the Owners Corporation demand medical evidence to prove the allergy actually exists?
• QUESTION: Our owners corporation are repealing the current by-law from requiring written permission to keep pets to Prohibiting the Keeping of Animals.
• QUESTION: Dogs at our complex yap for hours. The noise is driving me crazy but I’m not sure what I can do. Can you help?
• QUESTION: We have a no pets bylaw. We’ve seen NCAT will invalidate Strata bylaws that blanket ban pets. Will the current bylaw stand until another is voted on and registered?
• QUESTION: I’m in the process of purchasing an apartment. Can I get assurance pet approval will be granted before I buy the property?
• QUESTION: Are bylaws allowed to specifically prohibit ownership of dogs whilst cats and other animals are subject to approval?
• QUESTION: We are about to sign a rental agreement for an apartment. Other residents have pets but our application for 2 dogs has been rejected by the owners corporation. Is this legal?
• QUESTION: Does pet approval come with the apartment? If someone else moves into the apartment are they automatically approved to have two dogs if the previous person had two dogs?
• QUESTION: Due to complaints from one neighbour, our strata is trying to take us to court over our small dog. Other neighbours confirm the dog is fine. Do I have any right to keep the dog and not get taken to court?
• QUESTION: The previous lot owner had approval for a dog. I’ve just moved in. Does the pet approval apply to me or do I need to submit a new request for approval so I can have my dog at the unit?
• QUESTION: I have 3 dogs in a 2 bedroom apartment. I only have approval for one pet. I’ve received a letter about one of the dogs barking and told to remove one of the dogs. What can I do?
• QUESTION: The Strata Committee plans to rescind our Keeping of Pets bylaw. Do 75% of owners need to agree? Can an owner challenge the rescinding of Pets bylaw?

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Question: If a by-law states the written approval for a pet is a decision of the owners corporation, does the committee have the power to approval a pet?

Our by-law states that the written approval of the owners corporation (as distinct from the committee, which is often the case) is required before being able to keep a pet in one’s lot (excluding an assistance animal). Does the decision need to be made at a general meeting, or does the committee have the power to approve the pet and then ratify the request at a subsequent general meeting?

Answer: The strata committee may, on behalf of the owners corporation, approve pets.

While we have not read the by-law, it is not unusual for the strata committee to be delegated the function/power to approve pets under the by-law. Even if the by-law is silent as to the strata committee’s powers, the strata committee may, on behalf of the owners corporation, approve pets subject to the specific terms and conditions of the applicable by-law.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #664.

Question: Our owners corporation has introduced a by-law stating owners must carry pets on common property. Is this a valid and reasonable by-law? Some lot owners cannot physically carry their pets.

Our owners corporation has requested all owners carry their pets through the building. It has been a strongly anti-pet building for 40 years and the strata committee is very aggressive against any pets, so it took 2 years to get a by-law passed. In the interim, I purchased my pets and now they want me to sign the new by-law which was introduced sometime after I purchased the pets.

If pets were purchased before a pet by-law was introduced, can the by-law be enforced? Is it unreasonable to have a by-law stating owners must carry pets on common property? Some residents are physically unable to carry their pet.

Answer: An owners corporation can make a by-law prohibiting something that was previously permitted.

An owners corporation can make by-laws in ‘relation to the management, administration, control, use or enjoyment of the lots of the common property and lots of a strata scheme’ (see section 136 of the Strata Schemes Management Act 2015). This includes making by-laws which impose conditions and limitations around the keeping of pets, provided the by-laws does not offend the legislation.

Further, an owners corporation can make a by-law prohibiting something that was previously permitted. Therefore, provided the by-law is valid, I expect that it could be enforced.

However, I think that the by-law would have validity issues or at least would be challengeable for being ‘harsh, oppressive or unconscionable’ under section 139(1) of the Strata Schemes Management Act 2015.

The fact that the strata committee is seeking that you sign a copy of the new by-law would indicate to me that the committee is not necessarily confident in the by-law’s validity and/or enforceability.

Matthew Jenkins
Bannermans Lawyers
E: enquiries@bannermans.com.au
P: 02 9929 0226

This post appears in the August 2023 edition of The NSW Strata Magazine.

Question: We have a keeping of animals by-law stating residents can keep an animal, but not dogs or cats. Is this a reasonable by-law?

We have a keeping of animals by-law stating residents can keep an animal, but not dogs or cats:

“owners or occupiers shall be entitled to keep any animal upon their lot provided that no dogs or cats, other than assistance animals as prescribed by the legislation, shall be allowed upon any lawn or the common property.”

Is this a reasonable by-law?

Answer: I’m okay with restricting the types of animals, where animals are kept, or even the number of animals. But it needs to be done intelligently.

I’m okay with restricting the types of animals, where animals are kept, or even the number of animals. But it needs to be done intelligently. I’m not sure this by-law has been done with much thought. Two of the most common pets are dogs and cats.

Why is that restriction being imposed? What’s the reason behind the by-law? Is it because of limited space? In the Franklin case, it was an old aged care scheme, and people had a room for their bed and lounge and then an ensuite bathroom. That doesn’t necessarily rule out a small dog, a cat, or a lazy dog.

At face glance, this by-law is likely to be very, very challengeable and harsh, unconscionable and oppressive. If the by-law said you could have two dogs or two cats, or one dog and one cat, I would be more okay and happy with that restriction. If there was an ability to apply for a special exemption, such as we want to have three cats, but two of them are 18 years old, and all they do is lie on the bed all day. That would make the by-law much less likely to be deemed harsh, unconscionable and oppressive.

I saw a by-law the other day about venomous animals, and I thought, okay, well, I can see why that restriction would be imposed. I thought, that one’s likely to withstand challenge.

In this instance, I think the boundaries of this by-law are going to be tested. Go back to the scheme to ask how they can justify this restriction in the context of your scheme. How does that adversely affect you keeping that animal in your scheme?

Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990

This post appears in the July 2023 edition of The NSW Strata Magazine.

Question: Should the strata manager maintain a pet register as part of the owners corporation records?

Answer: While prudent, there is no positive obligation to do so. Council maintains records of registered animals and the strata manager could easily review pet applications to determine pet ownership.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #644.

Question: Our strata block has had an application for a pet. We don’t mind about the dog being in the building but want to make sure there aren’t any offending odours from the toileting of the pet. Is there a template bylaw for addressing this?

We have recently had an application for a pet in our strata block. We aren’t too concerned about the dog as such, it’s more to do with my environmental conditions etc the “toileting” of the pet.

Many of our balconies face the common garden lawns. We are fearful of no longer being able to open our balcony sliding doors for ventilation due to the toxic, lingering urine stenches in the vicinity area.

As a resident of the building, can I request NO toileting of pets on common grounds/ garden lawns be added as an extra condition to the pet bylaw? If so, how do I word the request correctly?

Are there any example prototypes of other extra conditions regarding the pet bylaws I could refer to?

Answer: In terms of how you word this correctly, or whether they are any templates available, we recommend you get in contact with a law firm that has experience in strata law.

The issue of environmental conditions in strata communities is one that has come to the fore over the last two and a half years. Living in the close confines of a strata community requires tolerance (sometimes great tolerance) of others in all manner of aspects.

That does not mean that everything should be tolerated. Your concerns regarding how a pet owner toilets their pet are valid and reasonable.

The Owners Corporation may wish to impose conditions on the application that largely conform with the provisions in the Strata Schemes Management Act 2015 (“the Act”) and Strata Schemes Management Regulation 2016 (“the Regulation”). Any conditions imposed on the application must be reasonable so as to not be harsh, oppressive or unconscionable, and the Owners Corporation ought not unreasonably refuse permission to keep an animal.

Section 36A of the Regulation provides circumstances in which the keeping of an animal is considered to unreasonably interfere with another occupant’s use and enjoyment of a lot or the common property. One of the circumstances referred to in section 36A(f) of the Regulation is where an animal causes a “persistent offensive odour that penetrates another lot or the common property.”

You can request the inclusion of a condition that states that the dog must not be permitted to urinate or defecate on common property or common ground/lawn areas. This means that even if the strata scheme’s by-law relating to the keeping of animals is an older model by-law, the Owners Corporation has recourse against the pet owner if the animal causes an unreasonable interference in the circumstances referred to in section 36A of the Regulation and under section 137B(2) of the Act.

It is recommended that the condition also make provision for what a pet owner must do if (or when) the eventual “accident” happens and the dog does relieves itself in one of the common areas. This could be requiring the pet owner to “take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal” (By-Law 5(3)(c), Schedule 3 to the Regulations).

In addition to the conditions referred to above, other conditions the Owners Corporation may consider including are:

• that the animal be kept within the lot
• the animal be kept on a leash at all times when on the common property
• the animal be supervised when it is on common property.

In terms of how you word this correctly, or whether they are any templates available, we recommend you get in contact with a law firm that has experience in strata law. They can either amend the animals by-law you already have in place, or draft a new one.

Nancy Torry
Bugden Allen Graham Lawyers
E: nancy@bagl.com.au
P: 02 9199 1055

This post appears in the November 2022 edition of The NSW Strata Magazine.

Question: A sale was lost because individual lot owners lobbied the strata manager not to approve a pet application from a prospective purchaser. Can the individual lot owners be taken to court by the lot owner who lost the sale?

Answer: It is important to realise that the decision whether or not to grant permission to keep a pet is the decision of the owners corporation, not the lot owners who lobbied the strata manager.

It’s unlikely the vendor could successfully sue the lot owners who opposed the pet application.

In answering this question, three assumptions are made: the first is that the owners corporation’s by-law on pets requires permission to keep a pet; the second is that the sales contract was conditional on that permission being granted and allowed the purchaser to rescind the contract if the permission was not granted; and the third is that the decision to deny the application was unreasonable.

It is important to realise that the decision whether or not to grant permission to keep a pet is the decision of the owners corporation. It is not the decision of the lot owners who lobbied the strata manager to deny permission and it is not the decision of the strata manager. Therefore, if the vendor was looking to sue anyone, it would be the owners corporation and not the lot owners or the strata manager.

If the decision to deny permission was unreasonable, then remedies against that decision are set out in the Strata Schemes Management Act 2015 including an application to NCAT seeking approval to keep a pet on the grounds that the owners corporation’s decision to deny permission was unreasonable. In that NCAT case, the respondent is the owners corporation and not the lot owners or strata manager.

There is no remedy under Strata Schemes Management Act 2015 or in NCAT to seek damages for the lost sale.

Any decision whether or not to sue anyone should only be taken after getting legal advice because evidence, documents and further information about the facts will be required before that advice can be given. If the assumptions set out above are not accurate, then that may also affect the legal advice given.

Carlo Fini
Lawyer (NSW)

This post appears in the April 2022 edition of The NSW Strata Magazine.

Question: Would a bylaw banning dogs in case they dug up the proposed new lawn be considered ‘harsh, unconscionable and oppressive’?

We live in a small, 12 unit pet-friendly building in Sydney. One owner is trying to ban dogs from our communal backyard or at a minimum insist they be leashed. The courtyard is fully enclosed and this is a big drawcard for those moving in with a dog.

The reason for the change is that ‘if’ we lay new grass, dogs will dig it up. There are 5 dogs in the building and none have dug up any of the gardens to date. All the resident dogs are small and cause no bother. I assume that to change the rules of the use of communal space, a by-law is required but would this type of bylaw be considered ‘harsh, unconscionable and oppressive’?

Answer: It is unlikely that a by-law based on such a hypothetical situation where there is no history to back it up, would be valid.

A by-law approved by special resolution of a general meeting is required to legally regulate activities that occur in a common area such as stipulating binding rules on the conduct and supervision of dogs on a common area such as the communal backyard. However, the rules would have to be reasonable.

You have indicated that there is no history of any dog damaging the communal backyard, and there is only a hypothetical situation that at some unknown point in the future the owners corporation may want to law new grass which could be damaged by a dog based on the view of one owner out of 12.

In line with the principles discussed in the decision in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250, it is unlikely that a by-law based on such a hypothetical situation where there is no history to back it up, would be valid and such a by-law would likely be ruled invalid because it is harsh, unconscionable or oppressive (see sections 139(1) and 150(1) of the Strata Schemes Management Act 2015 (SSMA 2015)).

This is backed up by section 137B of the SSMA 2015 and clause 36A of the Strata Schemes Management Regulation 2016 which basically say that if a dog repeatedly causes damage to common property (ie the damage has already occurred and is not a hypothetical situation) then it is deemed to unreasonably interfere with another occupant’s use and enjoyment of the common property.

A by-law could probably be made regulating dogs in the communal backyard as long as it is not over-reaching eg requiring a dog to be leashed when no one else is present such as children or elderly people may be over-reaching and result in the by-law being held to be is harsh, unconscionable or oppressive. A requirement in a by-law that a dog in the communal backyard be supervised by a responsible person would probably be valid.

Practically speaking, you have indicated that there are enough dog-friendly owners in your strata scheme who if they vote together can probably block a special resolution for a by-law being passed, so even if a by-law is proposed that would be harsh, unconscionable or oppressive if made, it is likely that by-law would never be passed.

There is probably no need to have a bespoke by-law dealing with the risk of dogs damaging the communal backyard because there are other provisions in the SSMA 2015 and model by-laws that can deal with that situation including:

• Model by-law 4 for pre 1996 strata schemes and the current model by-law 3 that prohibit owners and occupants from damaging lawns and gardens.
• Model by-law 5 for pre 1996 strata schemes that prohibits owners and occupants from damaging common property.
• Section 153 of the SSMA 2015 that prohibits owners and occupants using common property in a manner or for a purpose that interferes unreasonably with the use of the common property by another occupant.

If your owners corporation is considering passing a by-law to regulate dogs in the communal backyard, then it should obtain legal advice on the proposed by-law.

Carlo Fini
Lawyer (NSW)

This post appears in the February 2022 edition of The NSW Strata Magazine.

Question: We have a bylaw that does not permit pets, with the exception of assistance animals. Is this bylaw acceptable? If not, what do we do?

Answer: You should replace that bylaw with an appropriately worded bylaw

The answer to that question is crystal clear, No. A bylaw, which bans pets except assistance animals is not acceptable. It’s not enforceable. It’s not worth the paper it’s printed on.

You should replace that bylaw with an appropriately worded bylaw that places restrictions on the right of owners and tenants to keep pets in your building and contains reasonable conditions that regulate the keeping of pets in the building.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in the October 2021 edition of The NSW Strata Magazine.

Question: How does an owners corporation deal with a barking dog? The dog is upsetting the tranquillity of the residents and the dog owner does nothing to stop the barking.

Answer: Firstly, speak to or write to the owner of the dog and ask them to do something about the problem.

I think it’s steps and stairs. Firstly, the dog owner should be spoken to or written to, the problem the dog is creating should be put to that owner, and the owner should be asked to address it.

You have to remember that some people go to work, leave their dogs at home, don’t realise the dog is barking during the day, only to come home and find people complaining. So speak to or write to the owner of the dog and ask them to do something about the problem.

If that doesn’t work, then you would typically have your Strata Manager, write to the owner of the dog, explain the problem and ask them to deal with it.

If that doesn’t work, you then get to step three, which is to issue a notice to comply with the pets bylaw or other bylaws on that owner.

If that doesn’t work, step four would be to go to New South Wales Fair Trading to have a mediation. Try and resolve the dispute with the owner of the dog.

If that doesn’t work, your final step and port of call is to go to NCAT to seek in order for either the dog to be removed, or to compel the owner to take steps to stop the dog barking.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in the September 2021 edition of The NSW Strata Magazine.

Question: When is it OK to say “No Pets in the Apartment”? What are the rights of NSW landlords to stop tenants from keeping pets?

Answer: Apartment landlords in NSW are perfectly entitled to say to their tenant ‘No pets allowed’.

Bylaws bind owners and tenants. There’s no reason why a bylaw can’t say that a tenant, for example, has to pay a bond to the Owners Corporation before moving a pet into the building, if they’re allowed to do so.

Under residential tenancy laws in New South Wales, landlords are entitled to prevent their tenants from keeping pets in the strata building.

This can, in some cases, overcome the problem that the court case has created for owners that want to live in pet free buildings.

I gave an Owners Corporation in Sydney advice recently about their no pets bylaw, and it was all doom and gloom for me, ‘Your bylaw is not worth the paper it’s printed on. You need to change it. You need to deal with this tenant who wants to move a dog into the building’, and of course, my advice didn’t go down particularly well, because the strata committee wasn’t particularly happy about being told that they’re no pets bylaw was no good.

What did emerge was that the owner of that apartment didn’t want dogs or any pets to be kept in it, like many landlords. Under the residential tenancies legislation in New South Wales, that owner was perfectly entitled to say to his tenant ‘No pets allowed’. That then was a neat way to deal with the problem and the strata committee was very relieved when they discovered that this owner was on their side and didn’t want pets in their apartment.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in Strata News #505.

Question: What are the rules around visitors and non-residents bringing pets onto common property and into the building? This might be friends coming to visit residents or short term letting with Airbnb.

Answer: You’re not going to be able to have a bylaw that imposes a blanket ban on visitors or guests bringing pets into the building.

The rules are going to be much the same. You’re not going to be able to have a bylaw that imposes a blanket ban on visitors or guests bringing pets into the building. Why? because it may well be possible for some pets to be brought into the building without creating problems for other residents.

If we think of some examples, we can think about a small little chihuahua carried in lady’s handbag, I know it’s stereotypical, but that may well be a way that a guest can bring a dog into a building without having a detrimental effect on anybody. It’s a bit of an extreme example, but that’s just one.

So no, you’re not going to be able to ban visitors or short term stay guests from bringing pets into the building. You’re going to have to regulate it, and you’re going to have to require them or the people they’re visiting to get permission for them to bring the pets into the building, and you’ll only be able to withhold that permission if you have a reasonable basis for doing so.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in Strata News #503.

Question: If a resident is applying for a pet, should the application include a pet overview or a pet resume about what the pet is like? Do they need pet references? What are your best tips for success?

Answer: Provide as much information about the pet as you can.

Absolutely, you’ve got to put your best foot forward as they say. So if you’re applying to your strata building for permission to keep a pet, put your best foot forward. Provide as much information about the pet as you can. Go further than just saying ‘I want to keep a 13 year old miniature schnauzer in my apartment. His name is Angus and he’s really well behaved’.

Top Tips for Submitting a Pet Application

1. Provide evidence that the dog is:
   
   • registered with the local council
   • microchipped and had its immunisations
   • well behaved

2. Provide references:
   
   • from the dogs vet.
   • from other people who have lived with the dog in the past.
   • if you’re moving from one apartment building to another, get some references from former neighbours to say the dog is well behaved, that it never created a problem in the 10 years that it lived in our building.

3. It may well be that you want to bring the dog along to an interview with the strata committee. That does happen from time to time, sit the pup on the desk and hope it behaves. That’s the litmus test.

So definitely provide full details to your strata committee because we have to remember that if someone applies to keep a pet and they don’t provide sufficient details about the pet, that may well provide a reasonable basis for the committee to reject the pet application.

The committee might say “Well, you just didn’t give us enough information about this pet. We really can’t make a properly informed decision as to whether the pet is going to be a good or bad thing for the building. Therefore we’re saying no.” And that decision may well be upheld if it’s challenged in NCAT.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in the August 2021 edition of The NSW Strata Magazine.

Question: If lot owners pay a breach of notice fine and keep the pet without complying, can they be fined again?

Answer: They can be fined again. At the moment, it’s not clear what the extra penalty can be.

They can be fined again. At the moment, it’s not clear what the extra penalty can be.

If the $11,100 fine is imposed on the owner for breaching a notice to comply, and the owner continues to breach the relevant bylaw, you can go back to NCAT to get a penalty of up to $2,200 imposed for a repeat offence.

What’s not clear, however, is how the new laws I spoke about earlier are going to work. Those are the laws that will give NCAT power to impose a $5500 penalty for a breach of its ordinance.

You go the extra mile, you take somebody to NCAT, you get an order for them to remove their barking dog from the building, they ignore the order, you go back to NCAT again (incurring more time and costs) you get a penalty imposed, it probably won’t be the maximum of $5500 because that’s reserved for the most serious cases, and still nothing happens, and still you have to put up with the barking dog every day and night what can you do.

It’s not clear under these new laws, whether you’ll be able to go back to NCAT and seek a further penalty. I suspect the answer is: it will be possible for you to do that. The maximum penalty for a repeat offence will still be $5500 but I dare say NCAT would be inclined to probably impose a more severe penalty on a repeat offender.

The question of course remains, is that more severe penalty going to be enough to get rid of the problem?

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in Strata News #493.

Question: Why has no one used the argument that their pre 2016 pets bylaw remains valid due to the schedule 3 transitional provisions of the Act?

Answer: The no pets model bylaw that was introduced in 1997 wasn’t valid.

When the New South Wales Government rewrote the strata laws that commenced in November 2016, there was a provision which said that if there is a pre existing bylaw that was valid at the time it was made, it remains valid by law, no matter what we say in these new laws.

The question is this, was possible to make a no pets by law prior to 2016. Why didn’t some smarty pants run that argument in the court of appeal and say, ‘Your honours, we were able to make no pets bylaw in 1997, this transitional provision in the new strata laws was say that if the bylaw was valid back then it’s still a valid bylaw. How can you overturn?’. The court’s answer to that question, even though it didn’t directly arise in the case was this: you’d never had the power to make a no pets bylaw. That was quite a surprising position for the court to take, but in effect, what the court was saying was that the no pets model bylaw that was introduced in 1997 wasn’t valid.

That’ll leave a lot of people scratching their head asking ‘How can the government make a model bylaw that’s not valid?’, Well, it’s possible. Courts have the power to and do set aside legislation and regulations that are made by the government or Parliament from time to time, and I guess that’s what the court was saying that ‘You’ve never had power to make a no pets bylaw’, so that transitional provision doesn’t help you.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in the July 2021 edition of The NSW Strata Magazine.

Question: Is a bylaw legal that bans dogs but allows other animals?

Answer: In my view, you can’t do that.

That’s a really good question, and I think there are a number of strata buildings that are looking at doing something like that. They want to replace their blanket ban on pets with a blanket ban on dogs or certain other types of animals.

In my view, you can’t do that. You cannot impose a blanket ban on dogs, and the reason why you can’t do that is because that bylaw goes too far because there are some dogs that can be kept in an apartment building that will not have a detrimental impact on the amenity of other residents. Imposing a blanket ban on all dogs is a form of overreaching. The court said you just can’t do that.

What the New South Wales Government has done in response to this court decision is pass some new strata laws that will commence later this year, and one of those new strata laws says that you can ban the keeping of pets, provided that the ban is reasonable. What that means is that, for example, you can have a bylaw that says you are not allowed to keep fighting or dangerous dogs in our building. Because that’s reasonable. Because fighting and dangerous dogs will have a detrimental impact on the amenity of other residents because they’re going to attack them. So you should be allowed to ban them.

What you can’t do is just put a blanket ban on all dogs, or all cats or all hamsters and guinea pigs and fish and the like. If you can think of certain exotic pets that someone might want to keep in your building that are definitely going to have a detrimental impact on others.

Let’s take a simple example: venomous snakes that may well be let loose. No one wants venomous snakes in their building. Can you have a ban on venomous snakes? Possibly. However, what happens if you have a very responsible pet owner, who says it’s legal for me to keep a venomous snake in my apartment provided it’s in a certain enclosure, which I promise to maintain. I’ll never open the enclosure the snake will never get out. You can see an argument going both ways there. They will say that a bylaw banning dangerous snakes that could possibly be kept in the building in a way that doesn’t have a detrimental effect on anyone is not valid. But that’s a debate to be had for a later day.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in Strata News #485.

Question: Can we limit the types of animals that are allowed in our strata scheme to domestic animals? Avoiding goats and sheep in most cases?

A: The answer to that question will depend on whether it’s possible for that particular type of animal to be kept in your building in a way that does not have a detrimental impact on others.

So I think the question is this, this is the touchstone when you ask yourself, can we ban a particular type of animal? The answer to that question will depend on whether it’s possible for that particular type of animal to be kept in your building in a way that does not have a detrimental impact on others. If the answer is yes, then you can’t ban it. If the answer is no, then you can ban it.

So if it’s not possible to keep sheep and goats in a residential apartment building in Sydney, in a way that does not have a detrimental effect on other residents (and I think it probably is impossible) then yes, I think you can ban them. But of course, you got to ask the obvious question, who’s going to want to keep a sheep or a goat in the apartment building in Sydney.

But hey, it’s strata land so we see all sorts of weird and wacky things.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in Strata News #478.

Question: Can a bylaw restrict the size of a dog to no larger than 10 kgs and require pets to be carried on common property?

Answer: Regarding restricting the size of the dog, my answer is no, it’s not possible to do that, and if you do that, that aspect of your bylaw will not be enforceable.

This is a double barrelled question. Let me address the second aspect of it.

Can you put in place a bylaw that says ‘If you’ve got a cat or a dog, you’ve either got to carry it when it’s on the common property or put it in a cage or, in the case of larger animals, make sure that tethered to the leash?’

The answer is yes, provided it’s reasonable to do that in your building. In most buildings, it would be reasonable.

The first part of that question, however, is a bit more tricky. Can you have a bylaw that says ‘You are not allowed to keep large dogs in our building? For example, a dog that weighs or when fully grown will weigh more than 10 or 15 Kilos?’ My answer to that question is no, it’s not possible to do that, and if you do that, that aspect of your bylaw will not be enforceable. Why? Because if we go back to what the court said, it may well be possible for someone to keep a large dog in your building in a way that doesn’t have a detrimental impact on the amenity of other residents.

For that reason, owners and tenants should at least have the right to apply to their owners corporation for permission to keep the large dog. The owners corporation or the committee can then assess that application on its merits, deal with it reasonably and decide yay or nay.

Now can we just digress for a brief moment, this is probably going to be the next hot topic in this area. What we’re going to see are a lot of bylaws that say ‘If you want to keep a pet in our building, you need to get our approval’, and a lot of those bylaws will go on to say as they need to do now, ‘We can’t unreasonably withhold that approval’.

So what does that mean? It means that if your strata committee is confronted with an application by an owner or a tenant to keep a pet, and they want to say no, because for example, someone wants to bring a Great Dane into the building (a large dog), and everyone’s concerned or the committee is concerned that the Great Dane is going to take up all the lift space and it’s going to just be impossible for other people to ride in the lift with the dog, or it’ll make it extremely uncomfortable for people to do so. What does the committee do? And my answer is this: you have to have a good or sound reason for rejecting that pet application.

Saying ‘We do not want pets in our building. This is a pet free building’, is not a good reason. If that’s the reason the committee rejects the pet application, then the owner or tenant will be entitled to challenge that decision in NCAT and they’ll win.

Saying, for example, ‘We don’t want large dogs. Large dogs aren’t suitable for our building full stop’. Again, that’s probably also not a reasonable decision. Because it may well be possible for a large dog to live in an apartment building in a way that doesn’t have a detrimental effect on the amenity of other residents.

The committees need to be a bit smart about this, leave their emotion at the door, think about it rationally and think, ‘Is there a good reason for us objectively to reject this pet application?’

Now, what would be some good reasons? Well, if there’s evidence that this dog, for example, used to live in another apartment building, and attacked a resident in that building, barked throughout all hours of the day and night and caused a general nuisance, then you would have a good reason to reject the application for permission for that dog to be kept. If there was other evidence about the problems that pet had created elsewhere, or in your building, for example, if someone had brought that pet into the building illegally, previously and then applied for permission to keep the pet, you can say ‘Sorry, this pet has actually run a muck. It has defecated all over the common property. It’s dug holes in our gardenI. It’s barked from your balcony while you’re at work’. That’s a sensible, reasonable basis to knock back the application to keep that pet.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in the June 2021 edition of The NSW Strata Magazine.

Question: Can a Pet Bylaw reasonably limit the number of pets you can have in an apartment?

Answer: I think if you look at what the court said in the Cooper case, that would not withstand scrutiny

That’s a grey area. I do a lot of bylaws that say, ‘If you want to keep more than one pet, we can knock you back’, and it’s reasonable for us to do so, and I think if that ever gets scrutinised, again we’re getting back into the territory of imposing a blanket ban. What we’re really saying is, there is a ban on you having more than one pet in your apartment. I think if you look at what the court said in the Cooper case, that would not withstand scrutiny, because it may well be possible for someone (a responsible pet owner) to keep two dogs in an apartment, or to keep a dog, a fish in an aquarium and a small budgie in a cage in a way that can’t possibly have a detrimental effect on the amenity of other residents.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in Strata News #478.

Question: In a Short Term Rental Agreement where animals are involved, how quickly does the committee need to provide approval?

In a Short Term Rental Agreement where animals are involved, when is there an opportunity for the committee to meet and consider a request for an animal of a Short Term Rental Agreement tenant when there may be only say 7 days notice (if not shorter).

Surely it is not a requirement for a volunteer committee to drop everything and meet to consider such a request and have time to be able to check the bona fides of the animal etc.

Answer: The strata committee could not unreasonably delay its decision. But this does not mean the strata committee would need to drop everything and meet on short notice.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in Strata News #470.

Question: Why should owners who select a no pets bylaw have their decision overturned?

Answer: Even though you might want something, what you want in the eyes of the law is unreasonable, and therefore you just can’t have it.

This is a really good question and it was dealt with by the court in the Cooper case. There are many people out there who think they should be masters of their own destiny. So they should be able to decide whether their building will allow pets or be pet free.

But what you have to realise is that there are laws that place constraints on the ability of an owners corporation to make bylaws, including pets bylaws. What the Court has said is that those constraints make it impossible to have bylaws that impose blanket bans on pets, and that in the words of the court, a democratic will of the majority of owners doesn’t convert a democracy into a majoritarian dictatorship. So the court was sending a message to owners in strata land in New South Wales, that even though you might want something, what you want in the eyes of the law is unreasonable, and therefore you just can’t have it.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in Strata News #467.

Question: Would it be okay if a NSW pet bylaw required people to get approval from the Strata Committee before they permitted an animal in the building?

Would it be okay if a bylaw required people to get approval from the Strata Committee before they permitted an animal in the building? This
would give the Strata Committee the ability to vet the animal first to try to
decide if it would be a nuisance and not, say, a prohibited breed of
dangerous dog like a bulldog etc.

Answer: Yes this is possible and indeed this is now the recommended pets by-law for most strata buildings.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in Strata News #464.

Question: Can a “no pets” bylaw be valid on the grounds of resident’s allergies? Can the Owners Corporation demand medical evidence to prove the allergy actually exists?

When our owners corporation has discussed allowing pets in our 60 lot strata building, two of the owners claimed to have an allergy to pet fur. Their claims have put an end to the discussion.

Can a “no pets” bylaw be valid on the grounds of resident’s allergies? Can the Owners Corporation demand medical evidence to prove the allergy actually exists?

Answer: A “no pets” by-law cannot be justified because some residents have pet allergies.

A “no pets” by-law cannot be justified because some residents have pet allergies. The presence of some residents with per allergies might provide a good reason for an owners corporation to reject an application for permission to keep a pet but this would depend on the specific circumstances.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in Strata News #461.

Question: Our owners corporation are repealing the current by-law from requiring written permission to keep pets to Prohibiting the Keeping of Animals.

We just received the AGM motions for this year’s meeting and surprisingly the owners corporation are repealing the current by-law from requiring written permission to keep pets to the below:

By Law XX – Prohibiting the Keeping of Animals:

An owner or occupier of a lot must not bring or keep any animal on the lot or the common property.

An owner or occupier of a lot must not permit any person including any invitee of the owner or occupier to bring or keep an animal on the lot of the common property.

This by-law does not prohibit or restrict the keeping on a lot of assistance animal used by an owner or occupier of the lot as an assistance animal or the use of an assistance animal for that purposes by a person on a lot or common property.

Answer: The proposed pets by-law is not likely to be enforceable due a recent case which says that a by-law banning pets is harsh and unenforceable.

If the building is in NSW, the proposed pets by-law that will be considered at the AGM is not likely to be enforceable due to the Court of Appeal decision in the Cooper case which says that a by-law banning pets is harsh and unenforceable.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266

This post appears in the March 2021 edition of The NSW Strata Magazine.

Question: Dogs at our complex yap for hours. The noise is driving me crazy but I’m not sure what I can do. Can you help?

I live in a very large Strata unit complex. There is an overload of dogs here – almost like a Canine Hotel – but all in all they are well mannered, however, there are that sometimes bark and yap for up to 5 hours at a time.

I find it to be very stressful but I am not sure what I can do. I have emailed the building manager on several occasions and I plan to speak with him in person. I am sure he has a large workload but these barking dogs are driving me crazy.

We also have problems with residents who don’t clean up after their dogs and the dogs that go to the toilet on patios. Not exactly hygienic for anyone in the building.

Answer: Should you wish to take the matter further, you could attempt mediation and then make an Application for Orders through NCAT.

Usually the strata by-laws would regulate matters such as odours and endless barking and clearly, the barking is causing you a nuisance.

Should you wish to take the matter further, you could attempt mediation and then make an Application for Orders through NCAT:

158 Order for removal of an animal permitted under by-laws

1. The Tribunal may, on application by an interested person, make an order against a person who is keeping an animal on a lot or common property in accordance with the by-laws for a strata scheme, if the Tribunal considers that the animal causes a nuisance or hazard to the owner or occupier of another lot or unreasonably interferes with the use or enjoyment of another lot or of the common property.
2. The Tribunal may order that the person:
1. cause the animal to be removed from the parcel within a specified time, and be kept away from the parcel, or
2. within a time specified in the order, take such action as, in the opinion of the Tribunal, will terminate the nuisance or hazard or unreasonable interference.

Alternatively, you could speak to the neighbours (they might not be aware) or make contact with your local council for advice and which may issue a nuisance order (and attracts penalties for non-compliance), or, you could seek a noise abatement order from your local court.

We trust the above has addressed your query.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #450.

Question: We have a no pets bylaw. We’ve seen NCAT will invalidate Strata bylaws that blanket ban pets. Will the current bylaw stand until another is voted on and registered?

Answer: If an owners corporation applies to NCAT to enforce a “no pets” by-law through an order requiring a pet to be removed, NCAT will likely dismiss the application.

The recent Court of Appeal decision means that a by-law prohibiting pets is not likely to be valid. This means if an owners corporation applies to NCAT to enforce a “no pets” by-law through an order requiring a pet to be removed, NCAT will likely dismiss the application.

The sensible course is for any owners corporation that has a “no pets” by-law to replace the by-law with a new by-law that either restrict the keeping of pets or permits pets. Any new by-law should include reasonable conditions regulating the keeping of pets.

Happy to assist if needed.

Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E: adrianmueller@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 post appears in Strata News #424.

Question: I’m in the process of purchasing an apartment. Can I get assurance pet approval will be granted before I buy the property?

I’m looking to buy an apartment. Whenever I ask if the building allows pets, I get told that strata has to grant permission once I’ve moved in. I already have pets in my rental property and can’t risk buying somewhere and then being told I can’t have them. Any advice?

Answer: Whilst some strata committees are willing to consider applications for pets prior to purchase, in reality, most pet applications are not considered until after settlement.

Whilst some strata committees are willing to consider applications for pets prior to purchase, in reality, most pet applications are not considered until after settlement.

As a result, the best thing you can do is your due diligence.

First, when obtaining the contract for sale, get your solicitor to review the by-laws to see whether or not the by-laws allow pets and if so, what are the requirements for keeping pets and if there are any restrictions or limitations i.e. size, breed, species etc.

Secondly, make enquiries with the strata manager (and if possible a member of the committee) if the building is actually pet friendly, if there are other pets in the building and if the pet application is likely to be approved. This is because there are some buildings that have by-laws allowing pets, yet have ‘no pets’ policies and refuse all applications for pets.

David Bannerman
Bannermans Lawyers
E: enquiries@bannermans.com.au
T: 02 9929 0226

This post appears in Strata News #420.

Question: Are bylaws allowed to specifically prohibit ownership of dogs whilst cats and other animals are subject to approval?

The bylaws in my building require pets (except for fish) to be approved by the strata committee. However there is a specific clause which prohibits dogs (with the exception of guidance & hearing assistance dogs).

Are the bylaws allowed to specifically prohibit ownership of only dogs whilst cats and other animals are subject to approval?

Answer: We have seen such by-laws and in our experience they arose due to issues the strata committees had with existing dogs

We have seen such by-laws and in our experience they arose due to issues the strata committees had with existing dogs, in particular barking and soiling the common property.

Under the 2015 strata legislation, by-laws may not be harsh, unconscionable or oppressive and such a by-law may be invalidated by the Tribunal on application, noting also that the owners corporation/by-law cannot prohibit a disability animal (as referred to in section 9 of the Disability Discrimination Act 1992).

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the October 2020 edition of The NSW Strata Magazine.

Question: We are about to sign a rental agreement for an apartment. Other residents have pets, but our owners corporation has rejected our application for 2 dogs. Is this legal?

My application for a rental apartment was successful. I paid the deposit, the bond and was about to sign the lease. The apartment building is pet friendly, the current tenants have a dog and a cat and another apartment have 2 dogs living with them.

I received a phone call today saying that owners corporation had rejected our application for 2 dogs to reside in the apartment. The other people with 2 dogs were allowed as one of the dogs was old and terminally ill. We are in the EXACT same situation with one of our dogs dying from cancer but they still rejected our application.

How is this legal?

We had to cancel a holiday we had booked for 1 year as the move in date and holiday clashed.

Anyone know if we can challenge this decision?

Answer: You need consent from both your landlord and the owners corporation to keep a dog in the building.

Irrespective if:

1. the building is pet friendly;
2. there are other pets in the building; or
3. the by-laws allow for pets,

you need consent from both your landlord and the owners corporation to keep a dog in the building.

From your email below, it appears that the owners corporation has refused your pet application. As a result, there may be grounds under the by-law to challenge this decision.

It is hard to comment further without seeing the by-laws in question, however we specialise in disputes of this nature and could assist if you would like for us to provide a fee proposal.

Feel free to reach out on 02 9929 0226.

Matthew Jenkins
Bannermans Lawyers
E: enquiries@bannermans.com.au
T: 02 9929 0226

This post appears in Strata News #404.

Question: Does pet approval come with the apartment? If someone else moves into the apartment are they automatically approved to have two dogs if the previous person had two dogs?

Does pet approval come with the apartment? If someone else moves into the apartment are they automatically approved to have two dogs if the previous person had two dogs?

Then another approval question, that’s been around is ‘if I had approval for a dog and the dog passes away, and I get another dog, do I have to get approval for the new dog or if I already got approval for a dog?

Answer: Normally the approval is with the animal, not with the apartment

Normally it’s with the animal. Approval is for for the individual applicant.

Conditions around keeping pets should be uniform. The chairperson or the treasurer shouldn’t get to have five dogs and everyone else can only have one. It’s around governance. You must have rules for everyone so that its really clear that you know what the criteria is and you know what you need to do if things start going awry.

Rod Smith
The Strata Collective
E: rsmith@thestratacollective.com.au
T: 02 9879 3547

This post appears in Strata News #390.

Question: Due to complaints from one neighbour, our strata is trying to take us to court over our small dog. Other neighbours confirm the dog is fine. Do I have any right to keep the dog and not get taken to court?

Our strata is currently trying to take us to court over our small dog. We own the apartment and the dog is under 10kgs.

There have been complaints from one apartment underneath us. Other neighbours have stated that the dog doesn’t bother them.

Do I have any right to keep the dog and not get taken to court?

Answer: What you need to do first is check the by-laws that apply to your scheme.

What you need to do first is check the by-laws applicable to your scheme. That will determine whether or not you may keep your dog at your apartment. Even the most pet-friendly schemes require you to make application for your dog before you bring it on to the property and it seems you did not seek approval first. Also, even if you live in a pet-friendly scheme that does not mean your dog is allowed to cause a nuisance (by barking).

As for stopping the court action, you could remove the dog from the premises (though this step is unlikely to be a desirable one).

If the court action proceeds, you should seek advice from a strata lawyer to establish the pet position of your building and advise you as to whether or not the by-law is valid and enforceable.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #361.

Question: The previous lot owner had approval for a dog. I’ve just moved in. Does the pet approval apply to me or do I need to submit a new request for approval so I can have my dog at the unit?

I am the new lot owner of a strata property. The previous owner had approval for a dog. Does the approval still apply now I am the new owner?

The strata manager is telling me:

• I do not have approval for my dog
• the previous pet approval applied only to the last lot owner
• any new owners need to submit a request for approval.

Is this the standard ruling?

Answer: Generally, approval for a dog is dog specific and you will need to apply for approval to have your dog at the unit.

Depending on the by-laws applicable to your scheme, as a general proposition, approval for a dog is dog specific and does not attach to the lot per see.

So, the strata manager is likely correct and we recommend you comply with your by-laws and make an application in accordance with same.

On the upside, the fact that a dog previously resided there may assist as an argument that you should be permitted to have one too.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #336.

Question: I have 3 dogs in a 2 bedroom apartment. I only have approval for one pet. I’ve received a letter about one of the dogs barking and told to remove one of the dogs. What can I do?

I live in a 2 bedroom apartment with 3 dogs. I recently received a complaint from the owners corporation regarding barking dogs.

Apparently one of my dogs would be extremely excited every time we walk past the unit to go for our daily walk. The other 2 hardly make any noise.

The letter states that the Strata committee would only allow 2 animals and insists I remove one of my dogs from the apartment. I only have approval for one dog. I didn’t know I needed approval for each pet.

What can I do? Can I get approval to keep all 3 of my furbabies in the unit? I have till the end of the month.

Answer: Other occupants should be able to enjoy their property without the impacted of noise caused by one owner / occupant.

This could be a difficult proposition. I think that the Owners Corporation would only allow 3 dogs if there was a history of good behaviour from the dogs in the past. The fact that they have given you until the end of the month suggests to me that they have concerns with the noise.

Can I suggest you speak to your vet about strategies to stop your dog barking? You can communicate this to your strata manager. As you start to put these strategies in place, your strata may agree to an extension of the one month deadline and review your application at a later date.

That being said, many people including me would consider keeping three dogs in a 2 bedroom apartment to be too many dogs for the space. It is important as a strata manager to make sure that the rest of the strata occupants enjoyment of their property is not adversely impacted by the noise of one owner / occupant.

Rod Smith
The Strata Collective
E: rsmith@thestratacollective.com.au
T: 02 9879 3547

This article is for reference purposes only and is not intended to be a comprehensive review of the developments in the law and practice or to cover all aspect of the subject matter. It does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.

This post on appears in Strata News #351.

Question: The Strata Committee plans to rescind our Keeping of Pets bylaw. Do 75% of owners need to agree? Can an owner challenge the rescinding of Pets bylaw?

Our Strata Committee is planning on placing a motion at our next AGM to rescind the Keeping of Pets bylaw. Currently, we are allowed to keep either 1 bird, 1 fish, 1 cat or 1 small dog under 10kgs.

This motion is in reaction to a tenant breaking this bylaw. This, I believe is the only breach that has occurred in our building in the last 5 years.

What are the steps they must follow in order for this to occur? Is it true they would need 75% of owners agreeing to the change? Can an owner challenge the rescinding of the by-law?

Answer: A special resolution would need to be passed to change the existing pet by-law..

Procedure to change by-law

The procedure for changing a by-law is in section 141 of the Strata Schemes Management Act 2015 (SSMA).

A special resolution would need to be passed to change the existing pet by-law. A special resolution will be passed at the meeting if not more than 25% of the value of the votes are cast against the resolution. The value of a vote is the unit entitlement amount.

Removal of animals under existing by-law

If the owners corporation wishes to remove an animal which is not permitted under the existing by-law, an application can be made to the Tribunal under section 156 of the SSMA. If an animal is being kept in accordance with the existing by-law but the animal is causing a nuisance or hazard, or unreasonably interfering with the use or enjoyment of another lot or common property, an application can be made to the Tribunal for an order to remove the animal under section 158 of the SSMA.

Ban on pets

If the proposal is to remove the existing by-law and replace it with a by-law which completely prohibits pets, you can put forward an argument at the AGM that such a by-law would be invalid pursuant to s139 of the SSMA. Section 139 of the SSMA provides that a by-law must not be harsh, unconscionable or oppressive.

Two recent Tribunal decisions have found that an outright prohibition on pets is invalid as being harsh, unconscionable and oppressive. See Yardy v Owners Corporation SP 57237 (decided on 19 February 2018) and McCormick & McGinness v The Owners – Strata Plan No. 2371 (decided 9 October 2019).

Seeking order to invalidate resolution

If any procedural matters at the AGM have not been complied with (for example incorrect voting or non-compliance with meeting notice requirements) you can apply to the Tribunal for an order invalidating the resolution (section 24 of the SSMA). The Tribunal may refuse to make an order if the failure the comply with the SSMA or regulations did not adversely affect any person or if the Tribunal considers the resolution would have been passed despite the failure of compliance.

If a by-law is passed prohibiting pets, you could also apply to the Tribunal under section 150
of the SSMA for an order invalidating the by-law on the basis it is harsh, unconscionable or oppressive.

Have a question about rescinding the keeping of pets bylaw or something to add to the article? Leave a comment below.

Emma Smythies
Bugden Allen Graham Lawyers
E: emma@bagl.com.au
P: 0412 046 966

This article does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.

This post appears in Strata News #333.

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Read next:

• NSW: Q&A ‘No Animals Allowed’ – not even a companion animal
• NSW: Confirmed! The Tribunal will overrule strata pet bans

For more information on pet rules for strata or matters concerning more general strata information in NSW, visit our Strata Pets Living in Apartments and visit our NSW Strata Legislation

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