Owners Corporations have the right to make by-laws for the efficient management of the lots and common property in their Strata Plan. For example, many Owners Corporations have arrangements permitting animals, particularly small dogs and cats, to be kept – sometimes requiring specific consent. Others have blanket prohibitions. Opinions are often quite polarised for and against the idea of pets, particularly in large buildings where the numbers of pets and possible resulting nuisance could be significant.
However the 2015 amendments of the strata management laws (Strata Schemes Management Act 2015) include a new section 139 (1) which states that a by-law cannot be “harsh, unconscionable and oppressive”. That section enabled the NSW Civil and Administrative Tribunal (NCAT) to recently hold that a by-law which sought to entirely ban pet ownership in a particular strata scheme was invalid, citing contemporary acceptance that, within strata units, lot owners should have the right to keep pets provided there is a mechanism for assessment and regulation by the owners’ corporation. NCAT accepted expert evidence of the benefits of pet ownership and the acceptance of that evidence in contemporary community standards. It found that a blanket ban was “harsh, unconscionable and oppressive” because it:
- did not provide for a mechanism for the owners corporation to consider the individual circumstances of each lot owner or pet or grant an exception to the blanket prohibition
- unreasonably and unnecessarily precluded the exercise of ‘a right of habitation which the Tribunal considers is part of contemporary community standards associated with the rights of owners and occupiers of lots in strata schemes’ and
- did not permit a balanced consideration of multiple sides to the issue and only operated in the interests of lot owners who opposed pet ownership.
(Yardy v Owners Corporation SP 57237  NSWCATCD 19).
The case highlights the importance for owners’ corporations to consider the interests and needs of all lot owners or occupiers when attempting to regulate their behaviour through the use of by-laws. Owners’ corporations should be wary of imposing blanket prohibitions on any lot owner behaviour which a lot owner may reasonably expect to enjoy without granting an opportunity for review and discussion. Please do not hesitate to contact any member of the AV Property Team if you have any further enquiries.