Pets and strata - a win! But it's only the first step.

Jemima Mowbray • 15/10/2020

A win for pets in strata!

There have already been quite a few media reports about the excellent decision about pets and strata earlier this week at the NSW Supreme Court. On Monday the Supreme Court of Appeal found that a strata by-law that places a ban on pets breaches NSW strata scheme legislation and is invalid. A blanket ban on pets, they found, is “harsh, unconscionable or oppressive”.

It’s a great outcome, and hopefully the end of a long legal battle for Jo Cooper, owner of Angus, a 14 year old miniature schnauzer. Jo first applied four and half years ago to the NSW Civil and Administrative Tribunal (NCAT) to overturn the blanket pet ban in her apartment block so Angus could live with Jo and her partner in their Eastern Sydney unit. Jo’s challenge to the ban has seen her go through NCAT, the NCAT Appeals panel and then on to the Supreme Court of Appeal.

The case though was never about her personal situation alone. Jo challenged her strata by-laws knowing that a good decision for her would also impact thousands of pet loving apartment owners and residents across the state. Along the way she has connected with others keen to make strata more pet friendly, and has galvanised many into action – initiating a community petition to NSW Parliament on pets in strata (you can sign here!) and ensuring the barriers to pet ownership in strata are better understood by the broader community.

What does the decision mean?

The NSW Supreme Court of Appeal in their unanimous decision this week found pet bans in strata are in breach of NSW strata scheme legislation, because a blanket ban on pets is “harsh, unconscionable or oppressive". They agreed with the key argument put by Jo Coopers' lawyers that restricting the lawful use of each lot, on a basis that 'lacks a rational connection' with the enjoyment of other lots and/or common property, is beyond the power to make by-laws conferred by section 136". And so, the Tribunal is able to invalidate a by-law that blanket bans pets.

The decision then was not about all by-laws restricting pets in strata, but only those prohibiting all pets. As Justice MacFarlan explained in their reasons: "The by-law at issue in the present case (By-law 14) imposes a blanket prohibition (save in respect of assistance animals) on keeping any animal, or permitting it to be, on any lot or the common property. Its scope is broad enough to prevent lot owners using their lots in a way which could not, on any rational view, adversely affect other lot owners’ enjoyment of their lots or the common property. The keeping of goldfish in a secure aquarium was an obvious example given in the course of submissions in this Court. Other examples, such as the keeping of a small bird in a cage, could also be given."

What will the decision mean? Well, for owners in strata it means having a pet will be a whole lot easier, though there is still a lot of uncertainty. Requirements around written notification or seeking consent will probably be unaffected by this decision. However strata schemes will no longer be able to unreasonably withhold consent, or have rules that put in place conditions on pets that go beyond preventing a 'nuisance, or hazard, or unreasonable interference' for others.

Without guidance from Parliament (an amendment is currently under consideration by NSW Parliament) there is very likely to be a long process of pet owners taking cases through Tribunal or even courts exploring the legal meaning and impact of this decision. If a building is not pet-friendly currently, it seems likely they will attempt to put in only marginally less restrictive rules. And of course, you still have to follow council regulations and make sure you're appropriately providing for the welfare of your pet. But for many many pet owners this will make a big difference and make it much easier for them to share their home with their animals. 

Renters in strata still face key barrier to pet ownership (yes, the landlord)

For renters in strata it's a different story. They've always faced multiple barriers when it comes to pet ownership. Even if your strata scheme will now allow pets, you may still be facing a pet ban from the landlord. We make clear in our Guide to Renting with Pets that while there is no term in the Residential Tenancies Act 2010 (NSW) prohibiting a renter from keeping a pet, or requiring they ask for their landlord’s consent, many landlords include a clause in the tenancy agreement restricting pets. And under current tenancy law there is no specific ban on them doing so. We've said it before, it's a shame landlords are permitted to continue to act in 'harsh, unconscionable and oppressive' ways. 

The decision also throws up a significant problem with the current strata schemes legislation for renters. Even where their landlord may consent to them having a pet, if an unfair strata by-law banning pets is in place where they are renting, the renter has no ability to challenge it.

After the decision started to be reported we know many renters in strata got their hopes up. One hopeful renter posted in a Facebook group seeking clarification. They'd been in contact with their landlord who had previously said they were open to the renter getting a dog. The renter told their landlord about the recent decision hoping now they could start looking at adoption, but had gotten a dispiriting response. The landlord replied saying though they'd seen the decision, they understood strata for the rented premises still had a blanket pet ban in place and the landlord wasn't going to commence proceedings to challenge the bylaw - that was up to the renter.

Facebook question in Pets in Strata Group (full text is provided in caption)
Facebook post
Original poster [pet loving renter in strata]: Can someone clarify ... my landlord said I can get a dog but the strata has a blanket law against all pets. I emailed them this morning about yesterdays changes and got this response.
Landlord's response: Hi, unfortunately it does not work like that. You need pet approval from strata to get a pet. The item you are referring to is the Horizon building in Darlinghurst. The owner of the property won at tribunal, then lost on appeal, then took it to appeals court and won again. It is grey and slippery. If you would like to commence a tribunal against strata to force them to allow you a pet, then you are more than welcome to. Unfortunately I cannot let you get one without their approval. Sorry.​​​​

Their landlord is sadly right about one thing. At the moment if a strata scheme currently has a blanket ban on pets in their by-laws, the Supreme Court's finding this week that such a ban is "harsh, unconscionable or oppressive" does not necessarily mean the by-law immediately has no effect.

We warned of this when the new strata laws were being developed back in 2014-2015, and recommended at the time that the wording in the Act (at clause 137(1)) be amended to ensure harsh, unconscionable or oppressive by-laws have no force or effect. If there is opposition from the strata scheme to repealing a by-law banning pets, it may need to be challenged and an order sought from the Tribunal to invalidate the by-law. So an owner may still have to go through the rigmarole of challenging a strata by-law blanket banning pets, though such a challenge would be much more straightforward now. And hopefully most strata schemes will see sense and either immediately repeal blanket bans or at least not force the issue to go to Tribunal if a challenge is made.

But their landlord is wrong about the renter being able to commence proceedings to challenge the by-law.

Currently renters in strata schemes must abide by all strata by-laws, but do not have the same power as owner-occupiers in strata to challenge unjust or 'harsh, unconscionable or oppressive' by-laws. They are excluded (under sections 146, 148 and 150 of the Act) from seeking orders in relation to unlawful by-laws, even though by-laws apply to them both by direct operation of the legislation and through their tenancy agreements. A renter must rely on their landlord to raise the problem and challenge the unjust by-law on their behalf.  

There will be an opportunity to push for changes to NSW strata law during the upcoming statutory review for strata legislation kicking off in November. We will be raising both of these concerns - that a blanket by-law, having been found to be unjust may still nonetheless be enforceable until it is invalidated by the Tribunal, and that renters are excluded from challenging unjust by-laws. It wouldn't hurt though, if you are already hitting up against this as a pet loving renter in strata to pre-emptively let Fair Trading know this is a problem (they take 'complaints' via this online form).  

Pets and renting: what needs to happen?

For many of us - renters or not - pets are an important part of our family. We feel that we can't 'make home' if our pets can't be part of it.

Around 63% of Australian households have a pet. Pets have consistently been shown to be of benefit to the mental, physical and social health of owners. Pet ownership can have particular meaning for older people and people with disability, given the role companion animals often play in connecting people with community and place especially where they otherwise may find themselves isolated. 

And yet despite the acknowledgement that pets are a vital part of our communities, those of us who rent and own a pet nonetheless struggle to lock in rental housing. Many rental properties are off-limits to us immediately, with the vast majority of advertised rental properties continuing to disallow pets. Many renters who own pets report experiencing discrimination at the point of application. Particularly upsetting, research clearly indicates significant numbers of people experiencing domestic violence delay leaving a situation of violence because they aren't able to secure alternative housing that allows them to bring their pets with them. For this reason we, along with Domestic Violence NSW and others, strongly recommended reforms to tenancy and strata law to make them more pet friendly in the recent Review into Animal Abuse and Domestic Violence undertaken by the Department of Communities and Justice. 

For what it's worth we do not think the answer lies with pet bonds. Renters are already responsible (liable) for any damage their pet causes in a rental property. While landlords and agents sometimes ask for additional amounts of bond (that is, over and above the usual four weeks’ bond) for pets, this is not lawful in NSW. Earlier this year Meriton got caught out charging an illegal, non-refundable $1100 'pet license' fee for renters in their apartment complexes. They only stopped when Fair Trading threatened to take them to court. (If you are a renter who has been charged a 'pet license' fee take note: Fair Trading recommends anyone who believes they have been charged a fee in exchange for permission to keep a pet to contact their landlord to request a refund. If a refund is not forthcoming, tenants are encouraged to contact Fair Trading directly). 

Instead, as we have argued previously, we need tenancy laws that let renters make their own adult choices, and in terms of regulation are guided by the welfare of the animal. We have seen steps towards more pet friendly tenancy laws around the country. ACT, Victoria and Northern Territory have all quite recently introduced pet friendly reforms which mean landlords can't unreasonably reject a request for a renter to own a pet. Though this still leaves renters with pets vulnerable to discrimination when applying for a rental property.

The decision in Jo Cooper's case at the Supreme Court this week is a really positive development. In practical terms, if no further challenge is made to the high court, it should remove one of the barriers to pet-ownership for renters in apartment blocks, and other strata premises. And so many strata residents are renters! But pet loving renters of NSW rest up only briefly, there's still a lot of work to do.

 


For more info on renting with pets in NSW, see our Tenants' Guide to Renting with Pets.