Last year it was decided in a landmark cause in the NSW Court of Appeal that a blanket ban by an Owners Corporation on pets can be invalid.
In Cooper v The Owners Strata Plan No 58068 [2020] NSWCA 250 the OC argued that a 13 year old miniature schnauzer could not be kept in the apartment because there was a by-law of the scheme that prohibited the keeping of any animal, other than assistance animals, in the 328 apartment complex in Sydney.
The Coopers applied to the NSW Civil and Administrative Tribunal (“the Tribunal”) to challenge the by-law on the basis that it was harsh, unconscionable and/or oppressive. The Owners Corporation argued that there had always been a ‘no pets’ by-law which was accepted by residents joining the scheme and any individual applications made by a resident did not need to be considered.
The Tribunal found in favour of the Coopers and held that the blanket by-law was invalid.
The case found its way to the NSW Court of Appeal (“the Court”) and the Coopers argued that the issue was not whether they agreed to the by-laws in purchasing their apartment but that the by-law itself was harsh, unconscionable and/or oppressive in its general application to all owners.
The Court held that the by-law was so wide that even ownership of goldfish were prohibited under it. The Court agreed with the Coopers that the prohibition of ownership of any animal is oppressive and an unjustified interference with an owner’s property rights including their use of the residence.
While this decision relates to NSW Strata Schemes, the basis and foundations are analogous to the law in Victoria and a similar blanket ban may be treated similarly.
Further, you may be aware that the Residential Tenancies legislation has also recently changed to restrict the ability of owners to refuse their tenants permission to have pets on leased property. It seems between the Court and the legislature, the liberty of occupants to have pets is being strengthened.
As a landlord or OC member, it is important to ensure that any rules such as these are properly considered, structured and written to ensure they are more likely to be upheld as enforceable.
How can Nevett Ford assist you?
If you have any concerns regarding Owners Corporations or Owners Corporation Rules, our Property and Conveyancing Team will be able to assist you and can be contacted at melbourne@nevettford.com.au or phone our lawyers in Melbourne on 03 9614 7111.