By Sonia Hickey and Ugur Nedim
The New South Wales Court of Appeal (NSWCA) has made what’s being labelled as a landmark decision for pet owners in apartment buildings and other strata managed premises.
Angus’ owner, soul singer Jo Cooper, has endured a five year legal battle with the strata corporation of a prestige Darlinghurst apartment building to keep Angus in her home, and the NSWCA has ruled in her favour – a decision that could impact thousands of apartment residents across the state.
The crux of the judgment is that strata managers are prohibited from imposing blanket bans on pet owners, as such prohibitions are “harsh, unconscionable or oppressive” under the law.
The problems for Angus and her owner began when the little one (Angus, that is) urinated in the foyer of the apartment building, bringing him to the attention of the strata committee.
Ms Cooper was initially told by other pet owners to ‘sneak the dog in and leave the by-laws alone.’
But the proud mother was not happy with the blanket ban on pets, and sought for the by-law to be changed.
When mediation failed between Ms Cooper and the owners’ corporation, the battle went to the NSW Civil and Administrative Tribunal (NCAT) and then all the way to the NSWCA.
Each strata scheme has its own by-laws, which owners, tenants and, in some cases, visitors must follow. By-laws cover the behaviour of residents and the use of common property, usually covering such issues as how smoking is regulated, pool or gym facility hours, parking and pets.
The by-laws can vary significantly from scheme to scheme because owners corporations can determine the by-laws that suit the preferred lifestyle of the strata scheme.
However the Court of Appeal’s decision now means that rules set by owner’s committees in strata managed complexes must ensure a more balanced approach to the way they manage their buildings.
In their judgment, justices John Basten, Robert Macfarlan and Des Fagan said the tower’s bylaw restricted the “lawful use of each lot” and lacked a “rational connection with the enjoyment of other lots and the common property”.
“A bylaw which limits the property rights of lot owners is only lawful if it protects from adverse affection the use and enjoyment by other occupants of their own lots, or the common property.”
The ‘pet effect’
Numerous studies have concluded that pet ownership is associated with a range of physical, psychological and social health benefits, including boosting the immune system, helping to lower blood pressure and reduce stress.
Pets can encourage owners to exercise and spend time outdoors. Owners are also less likely to experience loneliness and depression, as pets provide a sense of purpose and can often be ‘social enablers’, by providing people with opportunities to meet and talk with other humans.
Around 5.7 million of Australia’s 9.2 million households have a pet. Recognising this, in 2017, NSW Fair Trading, which governs strata laws in the state set a new default by-law that pets are allowed and the owners corporation must be notified.
Under this rule, tenants in strata managed properties need to seek approval from their landlords to keep a pet in the first instance, and then the strata committee should be notified. Under tenancy laws in New South Wales, landlords cannot ‘reasonably refuse’ a pet.
The Companion Animals Act NSW is the legislation which governs the responsibilities of pet owners, in particular those for registering pets, and the rules for having pets in public spaces.