Pets in Strata Units

Court has pet hate for ‘no pets’ by-laws: Court of Appeal confirms blanket pet bans are harsh, unconscionable and oppressive

Have you ever thought about getting a pet, but your strata by-laws say no?

The long-awaited Court of Appeal decision of Cooper v The Owners Strata Plan No 58068[1] has confirmed that a blanket ban on pets could be invalid.

Key facts

The Coopers purchased an apartment in a 43-storey strata scheme made up of 328 residential lots, in Sydney.[2] At that time, the strata scheme had a by-law prohibiting keeping any type of animal, other than an assistance animal.[3]

Despite the by-law, the Coopers kept a 13 year old miniature schnauzer,[4] weighing in at 9.5 kilograms and described as being highly trained, non-shedding, extremely friendly, family-oriented, good with children and, perhaps most importantly, “does not bark”.[5]

Tribunal decision

The Coopers applied to the NSW Civil and Administrative Tribunal known as “NCAT” to challenge the by-law. They argued that the by-law was invalid as it was harsh, unconscionable or oppressive.

The owners corporation claimed that the property had always been “no pets” and most owners obviously liked it that way.[6] They also argued that a blanket “no pets” by-law meant that they didn’t have to spend time considering individual applications.

The Tribunal found that the by-law was invalid and ordered the owners corporation to remove it.[7]

Appeal Panel decision

The owners corporation appealed to the Appeal Panel of the Tribunal, arguing that the by-law should stay because it was already there when the Coopers bought their apartment.

The Appeal Panel agreed. They said that unit owners buy their apartments with the by-laws, and that communities within strata schemes are given the choice of how they wish to live. [8] This included choosing whether or not they want to live with animals.[9]

The Appeal Panel ordered the schnauzer to go!

Court of Appeal decision

The Coopers appealed to the NSW Court of Appeal claiming that the circumstances of the Coopers acquisition buying their unit was irrelevant.[10]

The Court of Appeal agreed. They said that the real question was whether the by-law was harsh, unconscionable or oppressive in its general application to all lot owners.[11]

The by-law was so wide that it even prohibited goldfish![12] The Court decided that prohibiting animals “across the board” is an unjustified interference with an owner’s use of their apartment. [13]

On that basis, the Court of Appeal decided that the by-law was invalid, and the schnauzer lived to tell the tail tale!

What this means for you?

The Court of Appeal decided that a blanket pet ban could be invalid. However, a ban on certain pets may still be permitted, barking dogs being an obvious example.[14]

It may also be possible for certain strata schemes to justify a “no pets” by law.[15] For example, a very small strata scheme with many absentee landlords could lead to unreasonable costs granting permission for each pet.[16] In any case,  by-laws should not apply to pets such as goldfish.

It will be interesting to see whether the Tribunal will see an increase in applications to invalidate by-laws for blanket bans on pets (or by-laws generally). We expect that many strata schemes will now treat pet ownership on a case by case basis, rather than impose blanket pet bans.

For more information contact Tim Somerville (02) 9923 2321 tsomerville@somervillelegal.com.au