Pets in Strata buildings

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Sydney Apartment Buildings Win Appeal to Prohibit Pets from their Strata Schemes

On 27 May 2020 the Appeal Panel of the Civil & Administrative Tribunal New South Wales (“NCAT”) handed down two decisions commenced by Owners Corporations to appeal previous decisions made by NCAT in September and November 2019.

The decision of The Owners - Strata Plan No. 58068 v Cooper [2020] NSWCATAP 96 concerns the Horizon Apartment Building in Darlinghurst.  In 2019 the Owners Corporation sought orders for the removal of a 13-year-old miniature schnauzer, named Angus, owned by Mr and Mrs Cooper from their strata lot. Mr and Mrs Cooper brought a cross-application and were successful in their proceedings at first instant. The decision was handed down on 21 November 2019 where NCAT ordered that By-Law 14 of the Strata Scheme (prohibiting pets) was harsh unconscionable and oppressive and declared the By-Law invalid by reason of operation Sections 139 and 150 of the Strata Schemes Management Act 2015 (NSW) (“SSMA”).

The decision of The Owners of Strata Plan No 55773 v Roden; Spiers v The Owners of Strata Plan No 77953 [2020] NSWCATAP 95 concern two decisions encapsulating similar legal issues concerning the Elan Apartment Building in Rushcutters Bay and the Cappella Apartment Building in Kensington respectively.   Mr Roden, an owner within the Elan Strata Scheme, whilst not the owner of a pet, wished to acquire a dog despite the Elan’s bylaw prohibiting pets. Ms Spiers owned two dogs, Daisy and Fergus, in a building where a by-law only permitted one small animal.

The Owners Strata Plan No. 58068 v Cooper [2020] NSWCATAP 96 (“the Cooper Case”)

In the Cooper case, the Appeal was allowed and Orders were made for the removal of Angus from Mr and Mrs Cooper’s lot in the Strata Scheme. The Appeal Panel in making this decision found that NCAT was in error in concluding By-Law 14 was harsh, unreasonable, and oppressive. The Appeal Panel had regard to:

(a) the fact that when a motion was put at an AGM to allow for a small dog, cat or caged bird or fish, the By-Law was defeated by 89.82% of the Owners, by unit entitlement, who voted;

(b) Mr and Mrs Cooper were aware when they acquired their lot that a By-Law was registered which prohibited the keeping of a pet within the Strata Scheme;

(c) NCAT, at the first instant, erred in considering subjective evidence about Angus such as the nature of his breed and suitability for strata living. The analysis by NCAT did not take into account all of the circumstances relevant to determine whether or not By-Law 14 was harsh unconscionable or oppressive on an objective basis.

(d) There was no evidence to suggest that there was any medical, psychological or other need of Mr and Mrs Cooper, to keep Angus within their lot.

The Owners of Strata Plan No. 55773 v Roden (“the Roden Case”); Spiers v The Owners of Strata Plan No. 77953 [2020] NSWCATAP 95 (“the Spiers Case”)

The Roden Case

In the Roden case, the Appeal brought by The Owners - Strata Plan No 55773 was allowed and the Order declaring By-Law 14 invalid was set aside.

The Elan building had a no pet policy from its inception, however after several owners had acquired pets contrary to the By-Law, a new By-Law was passed, being By-Law 14, which provided that Owners must not keep a pet on common property or in their lot unless the dog is a guide dog or a hearing dog however the By-Law did not apply to residents who owned an animal and lived in the Elan Building as at 22 March 2013, who were permitted to keep their animals if they complied with a number of conditions. The By-Law was passed at an Extraordinary General Meeting on 6 June 2013 by a majority of 81.85%.

The Appeal Panel, in determining the proper construction of Section 139 (1) of the SSMA, considered that the Act specifically prevented the making of by-laws concerning dealings relating to a lot, children and the keeping of assistance animals.

NCAT found at first instant that:

(a)   a by-law which prevents the keeping of an animal as a pet is contrary to an owners’ basic habitation right and the use and enjoyment of their respective lot.

(b)    A by-law is oppressive because it does not involve or reflect a balanced consideration of all lot owners or occupiers and it operates only in the interests of lot owners who are opposed to pet ownership.

The Appeal Panel found that that the above decision was in error. The test as to whether a by-law is harsh, unconscionable or oppressive is an objective test. The degree of severity must be higher than the standard of “unreasonable” as the word “unreasonable” is used elsewhere in the SSMA and therefore was not intended by the legislator.  The Appeal Panel therefore found that the By-law was not harsh, unconscionable or oppressive.

The Spiers Case

In 2015, the Cappella Apartment Building in Kensington passed a by-law which provided for the keeping of one small animal with the consent of the Owners Corporation and provided a weight criteria as to what would be defined as a “small animal”. In 2018, Mrs Spiers acquired her lot. Between Mrs Spiers exchanging contracts to acquire her lot and moving into her apartment in April 2018, Mrs Spiers acquired a second dog.

Mrs Spiers submitted an application for the keeping of two animals, Fergus and Daisy, however the Strata Managing Agent advised Mrs Spiers that she could only be permitted to keep one animal within her lot. Mrs Spiers submitted that the By-Law was harsh unconscionable and oppressive because it did not take into account the different sizes of units within the complex, with her apartment enjoying a large terrace. This submission was rejected at first instant and on Appeal as there was no “yardstick” to measure whether the By-Law was harsh, unconscionable or oppressive in an objective sense and it was unclear how this would operate in practice.

Mrs Spiers’ Appeal was dismissed and she was ordered to remove Fergus from her lot.

Conclusion

It is unknown whether any of the above lot owners will Appeal the decision to the Supreme Court of New South Wales. The latest decisions are of high importance as many strata buildings within New South Wales have had, since inception, a “no pet policy” contained within in their by-laws. Whilst some strata schemes have been lax over the years enforcing the no pet by-law, other strata schemes have been meticulous with bringing proceedings in NCAT to seek the removal of pets contrary to the by-law.

Since late 2019 case law had indicated that the “no pet policy” may have been harsh, oppressive and unconscionable and therefore invalid and unenforceable which would have allowed lot owners to keep animals within their lot. 

Whilst the position has now been made clear that such a by-law is not harsh, unconscionable or oppressive, these cases may be distinguished if an Owners Corporation has permitted pets and subsequently attempts to implement a no pet policy as the new by-law would remove a right already enjoyed by lot owners.

If you have any queries in relation to this article please do not hesitate to contact our Kate MacDonald.

Kate MacDonald

Solicitor Director