WA: Q&A Strata Pet Approval. Challenging the ‘No Pets’ ByLaw?

These Q&As are from WA Lot Owners about strata pets, approvals and living near noisy dogs.

Table of Contents:

• QUESTION: We have registered a no dog by-law. Does our by-law override the new WA tenancy laws that allow pets?
• QUESTION: I own a holiday house on a strata property in WA. The scheme has a no-pet policy. This by-law goes back 30 years. Some owners would like to bring their dogs on holiday with them. How do we go about changing this by-law?
• QUESTION: If my pet is not a Government Accredited Assistance Dog (with the ID card) but I have a letter from my Doctor stating I have a mental health condition and require an emotional support assistance animal, is that enough for my animal to be exempt from our “no pets” by-law?
• QUESTION: Does the standard pet bylaw in WA mean that residents can keep an animal without apply to the council, until a time they are given notice to remove it?
• QUESTION: Can a Strata Company prohibit the transit of pets in a lift?
• QUESTION: If we have nothing in our bylaws about pets, can residents own a dog as long as they clean up after it and it does not cause any nuisance? 
• QUESTION: We have a no pet policy. A lot owner has purchased a service dog without seeking permission. Are we at rick of legal action if we refuse to accept the dog?

Question: We have registered a no dog by-law. Does our by-law override the new WA tenancy laws that allow pets?

Our strata company has recently registered a by-law in our 24-unit complex stating no dogs are allowed. We have discovered one resident has a dog, though curiously, didn’t vote against the by-law.

Is there a procedure to allow this one dog for as long as it lives but not any other dogs? Does our by-law override the new WA tenancy laws that allow pets?

Answer: You should obtain legal advice about whether the by-law is invalid and the appropriate wording to limit the risk that the by-law is invalid.

The answer to your first question depends on the terms of the by-law. A by-law about pets should be drafted to give the strata company the power to agree to a person keeping pets in certain circumstances.

For example, a by-law along the following lines may be appropriate:

“An owner or occupier or a lot must not keep animals on the lot or the common property without the written consent of the council, which consent must not be unreasonably refused.”

If the by-law for your strata does not give the council the power to approve pets, it may be worthwhile to consider an amendment to the by-law, which would allow the council to address the current circumstances.

It is possible the by-law will be invalid if it is inconsistent with the new WA tenancy laws that allow pets, but this will depend on the wording of the law (once it is passed). This is because section 46(b) and 46(f) of the Strata Titles Act 1985 (WA) provide that by-laws are invalid to the extent that they are inconsistent with any written law (in this case, the Residential Tenancies Act), and to the extent that they restrict the lease of a lot.

It is also possible that the by-law may be invalid, even before the introduction of the new WA tenancy laws, depending on the circumstances and wording of the by-law. In a recent case in New South Wales, a by-law containing a prohibition on keeping animals was found to be invalid (Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250).

This question has not yet been settled in Western Australia but was considered in the context of holiday accommodation in Steele and The Owners of Cocos Beach Bungalows [2021] WASAT 101).

You should obtain legal advice about whether the by-law is invalid and the appropriate wording to limit the risk that the by-law is invalid.

Tahnee Watson
Douglas Cheveralls Lawyers
E: tahnee@dclawyers.com.au
P: 08 9380 9288

The content of this document is intended to provide general information only, and is not intended to be comprehensive, to constitute legal advice or to create a solicitor-client relationship with Douglas Cheveralls Pty Ltd (and no such relationship is created). Douglas Cheveralls Pty Ltd makes no warranties, guarantees or representations about the accuracy, currency or suitability of the information to specific circumstances, and will not be liable (including in negligence) for any loss suffered as a result of reliance on the information contained in this website.

This post appears in the September 2023 edition of The WA Strata Magazine.

Question: I own a holiday house on a strata property in WA. The scheme has a no-pet policy. This by-law goes back 30 years. Some owners would like to bring their dogs on holiday with them. How do we go about changing this by-law?

Answer: A change/consolidation of by-laws would need to be raised at the next AGM or EGM.

If there is a by-law in place that states no pets and owners would like to change this law, then a change of by-laws/consolidation of by-laws would need to be raised at the next Annual General Meeting or Extra-ordinary General Meeting.

The change(s) in by-laws would need to be placed on the notice of the Annual General Meeting and then voted on at the meeting. A change in by-laws requires a motion without dissent, which means that if one owner objects, the changes cannot take effect. It may also be prudent to review any local council laws for holiday parks and the allowance of pets.

Jamie Horner
Empire Estate Agents
E: JHorner@empireestateagents.com
P: (08) 9262 0400

This post appears in the May 2023 edition of The WA Strata Magazine.

Question: If my pet is not a Government Accredited Assistance Dog (with the ID card) but I have a letter from my Doctor stating I have a mental health condition and require an emotional support assistance animal, is that enough for my animal to be exempt from our “no pets” by-law?

My strata by-laws state that pets are prohibited and, if found to be on property, will have to be removed.

I have been diagnosed with depression and PTSD and want to get an emotional support animal (which is not ‘legally’ an assistance animal). I have a Drs certificate to state I require an emotional support animal. Under these circumstances, can the Council of Owners enforce the by-law and demand I remove the animal?

If my pet is not a Government Accredited Assistance Dog (with the ID card) but I have a letter from my Doctor stating I have a mental health condition and require an emotional support assistance animal, is that enough for my animal to be exempt from our “no pets” by-law?

Answer: See below for our list of suggested actions.

Disclaimer – this is not to be intended to be legal advice and we recommend the owner is seeking their own legal advice.

Under Section 3 – Terms Used – an assistance animal has the meaning given in the Disability Discrimination Act 1992 (Section 9)[DISABILITY DISCRIMINATION ACT 1992 – SECT 9 Carer, assistant, assistance animal and disability aid definitions] (2);

Section 46 of the Strata Titles Act 1985 describes when bylaws are invalid – therefore, Scheme Bylaws are invalid

subsection (h) to the extent that they prohibit or restrict the keeping on a lot of an animal that is uses as an assistance animal by a person with a disability who is an owner or occupier of a lot:

subsection (i) to the extent that they prohibit or restrict the use on the parcel of an assistance animal by a person with a disability.

Section 9 (2) of the Disability Discrimination Act 1992 states:

For the purposes of this Act, an assistance animal is a dog or other animal:

1. accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or
2. accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or
3. trained:
   
   1. to assist a person with a disability to alleviate the effect of the disability; and
   2. to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

Under the terms, disability in relation to a person, means:

1. total or partial loss of the person’s bodily or mental functions; or
2. total or partial loss of a part of the body; or
3. the presence in the body of organisms causing disease or illness; or
4. the presence in the body of organisms capable of causing disease or illness; or
5. the malfunction, malformation or disfigurement of a part of the person’s body; or
6. a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
7. a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
   

   and includes a disability that:

8. presently exists; or
9. previously existed but no longer exists; or
10. may exist in the future (including because of a genetic predisposition to that disability); or
11. is imputed to a person.

We would suggest the following:

• Obtain from a mental health practitioner a recommendation for the owner to get an assistance animal to support the mental condition/disability identified
• Then notify the Strata Company of the recommendation received from the mental health practitioner for the owner to obtain an assistance animal in support of the mental condition/disability identified
• Advise further the Strata Company what kind of assistance animal the owner is intending to get and
• Assure the Strata Company that the assistance animal is appropriately trained to assist the owner to alleviate the effect of the mental condition – and in case of a dog – that it meets the standards of hygiene and behaviour in public places.

If the Strata Company continues to state that pets are not allowed hence refusing the owner to keep a pet under their bylaws, we suggest that the owner seek legal advice to take this matter further.

Marietta Metzger
magixstrata
E: marietta@magixstrata.com.au
P: 08 6559 7498

This post appears in Strata News #615.

Question: Does the standard pet bylaw in WA mean that residents can keep an animal without apply to the council, until a time they are given notice to remove it?

I am a strata owner and on the council of owners. I wanted a small dog and strata advised I needed to make an application to the council. I submitted an application and it was denied. Our bylaw regarding animals is as per the Strata Titles Act 1985 Schedule 2 12(c):

An owner or occupier of a lot must not —

(c) keep animals on the lot or the common property after notice in that behalf given to that person by the council.

Does this bylaw mean that I can in fact keep an animal without having to apply to the council, until I’m given notice to remove it? I’m presuming they could only ask me to remove it if the dog was causing some disruption?

Answer: If your complex is wanting a no pet complex then the standard by-law would not suffice.

On the basis that the standard Conduct by–law contained in schedule 2 12(c) applies to your Strata Complex then your interpretation of the by-law would be correct. The by-law is not requiring a pet to be approved but does require the pet to be removed on notice to that affect from the council of the strata company.

It would also be my advise to a Strata Company that they should only issue such notice for valid reason. Some examples of reason’s they may issue such notice would include:

• The pet is a threat to the safety of occupants in the complex
• The owner does not exercise control of the pet whilst on common property
• The pet constantly causes a disturbance to the peaceful enjoyment of the other occupants
• The pet has caused damage to the common property

I would also suggest that in most cases it is best for the strata company to give the pet owner opportunity to rectify the concerns prior to issuing a notice. A decision to enforce an owner to remove a pet should not be taken lightly.

If your complex is wanting a no pet complex then the standard by-law would not suffice. It is also important to be aware that any by-law that prohibits or restricts the keeping on a lot of an assistance animal (as defined under the Disability Discrimination Act 1992) is an invalid by-law under section 46 of the STA1985 – Invalidity of scheme by-laws.

Luke Downie
Realmark
E: ldownie@realmark.com.au
P: 08 9328 0999

This post appears in the June 2022 edition of The WA Strata Magazine.

Question: Can a Strata Company prohibit the transit of pets in a lift?

Answer: The standard by-law is silent regarding lifts, but should the animal present a nuisance, then the strata company can instigate the breach of by-laws process.

Each Strata Company is bound by by-laws, whether they are the standard by-laws or by-laws contained in a Management Statement or Scheme By-laws.

Schedule 2 By-law 12 (c)

Additional duties of owners and occupiers

An owner or occupier of a lot must not —

3. keep animals on the lot or the common property after notice in that behalf given to that person by the council.

The standard by-law is silent regarding lifts, but should the animal present a nuisance, then the strata company can instigate the breach of by-laws process if the animal is disturbing someone’s peaceful enjoyment.

There may be existing by-laws or ones contained in a Management Statement that determine if an animal can be in a lift or not.

The strata company also needs to ensure that when making decisions to enforce a by-law, that it complies with section 119 of the STA.

1. In performing its functions, a strata company is to have the objective of implementing processes and achieving outcomes that are not, having regard to the use and enjoyment of lots and common property in the strata titles scheme —
   
   1. unfairly prejudicial to or discriminatory against a person; or
   2. oppressive or unreasonable.

If the by-law said that all dogs must be carried when on the common property, then that may encourage owners to get small pets or join a gym to put on some muscle.

To prevent pets from transiting in lifts may be considered unreasonable, especially if the animal is well trained and obedient (unlike some owners or occupiers who use the lifts.)

In specific cases where a pet is aggressive to other occupants in the lift or toilets in the lift then it would be reasonable for the strata company to require the owner of the pet to either get it trained or use the stairs.

The worst case scenario for the pet is to have it removed.

Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au

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

Question: If we have nothing in our bylaws about pets, can residents own a dog as long as they clean up after it and it does not cause any nuisance? 

Answer: The standard bylaws give the power to the strata company to write to an owner or occupier and order the removal of a pet from the complex.

If your strata company by-laws have no registered change, additions or amendments then schedule 2 conduct by-law 12 (c) would apply, which states:

conduct by-law 12 Additional duties of owners and occupiers

An owner or occupier of a lot must not –

3. keep animals on the lot or the common property after notice in that behalf given to that person by the council.

Essentially, this gives the power to the strata company to write to an owner or occupier and order the removal of a pet from the complex. However, it is not as straightforward as that.

IF you consider case law, there are some examples of this by-law in action and it is safe to say that any Strata Scheme that is considering giving notice under this by-law should first ensure that the decision to do so is fair and reasonable and the reasons are valid. Examples may be a pet that has caused a persistent and constant nuisance to other occupants for an extended period or a pet that has proven to be a risk to the health and safety of other residents.

Invalidity of scheme by-laws

Another important factor to be aware of is that section 46 (h) of the Strata Titles Act 1985 provides that any by-law that prohibits or restricts the keeping of an assistant animal by a person with a disability who is an owner or occupant is invalid Under the Act. An assistance animal has the meaning given in the Disability Discrimination Act 1992 (Commonwealth) section 9(2): Carer, assistant, assistance animal and disability aid definitions.

Luke Downie
Realmark
E: ldownie@realmark.com.au
P: 08 9328 0999

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

Question: We have a no pet policy. A lot owner has purchased a service dog without seeking permission. Are we at risk of legal action if we refuse to accept the dog?

We have a no pet policy. We have had a request from an owner asking to have a dog. She has said the dog will be trained as a service dog. The has produced a doctor’s certificate stating a recent diagnosis but no proof of eligibility for a service dog.

She has already bought a puppy and is having it trained before obtaining permission to keep the dog in the building. I believe it may take up to a year to train a service dog.

Are we at risk of some sort of fine or legal action if we refuse to accept the dog? If it’s not a legitimate service dog, how do we stand if we refuse her request?

Answer: Service dogs are now prevalent across a range of medical issues and the Strata Company may have to make further enquiries in relation to the keeping of a service dog.

The Strata Titles Act provides for the Strata Company to pass and lodge bylaws to assist in the ongoing management of their complex. If the Strata Company has a policy that all of the owners support, this needs to be put to a vote at a general meeting and then registered on the Strata Plan so it becomes a registered bylaw.

A bylaw is then enforceable and if required, may be upheld via SAT if an owner or the Strata Company were to make an application. I am assuming from the comments you have provided that the policy is not a registered bylaw and if it isn’t, then I believe the standard governance and conduct bylaws would be seen as the bylaws for your Strata Company.

Schedule 2 Bylaw 12 (c) states:

Additional duties of owners and occupiers

An owner or occupier of a lot must not –

3. keep animals on the lot or the common property after notice in that behalf given to that person by the council.

This would allow someone to keep an animal until they are provided notice by the Council of the Strata Company that the animal must be removed.

In the case that you have identified below, without a registered bylaw, there would be no approval required for the keeping of this dog, whether it be a service dog or not.

Section 46 of the Act also notes that bylaws may be deemed invalid if they:

8. to the extent that they prohibit or restrict the keeping on a lot of an animal that is used as an assistance animal by a person with a disability who is an owner or occupier of a lot;

Service dogs are now prevalent across a range of medical issues and the Strata Company may have to make further enquiries in relation to the keeping of a service dog. My understanding is that the dog will come with some form of certification once it has been trained as a service dog, however as per your comments that may be a year away. If the dog is currently being trained for service then there would be some form of verification available from the service provider.

The Strata Company may also wish to seek legal advice to confirm their position, and their ability to reject this person’s application.

Shelley Fitzgerald
Emerson Raine
E: shelley@emersonraine.com.au
P: 9330 3959

This post appears in Strata News #534.

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Read next:

• WA: Reforms to WA Strata Legislation – As a Lot Owner, Should I Care?
• Strata Community Australia (WA): Pets Policy

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