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Are you a pet owner? Well, we have great news for you!
In October 2020, the NSW Court of Appeal held that blanket bans prohibiting pets in apartment blocks are no longer permitted.
Yep, that’s right, this means that in NSW your pet can no longer be prohibited from living with you in your apartment block!
So, how exactly does this work for pet owners? Read on to learn more.
What Are ‘Strata Titles’ And ‘By-Laws’?
If you live in an apartment block, retirement village or caravan park you have likely come across the term ‘strata title.’
If a property is under ‘strata title’ this means that there is ‘common property’ on the premises that is equally owned by everyone living on the property.
Common property may include a driveway, the courtyard garden or the foyer of your apartment block.
Strata title is governed by state law. For example, in NSW, the Strata Schemes Management Act 2015 (NSW) governs strata title.
Where there is strata title, there are by-laws. By-laws are a set of rules that owners and tenants must follow. They cover how residents can behave and what common property they can use.
Let’s consider the following example of a by-law.
| Example: By-law 12 12.1 Owners or occupiers of a lot should not make noise that is likely to interfere with the peaceful enjoyment of other owners or occupiers. |
Some states, such as NSW, even have model by-laws. Model by-laws are designed to help corporations write their by-laws by providing examples of by-laws that corporations can adopt or make changes to, though they don’t have to.
In NSW, the ‘owners corporation’ is responsible for passing and enforcing by-laws.
So, what happens when a by-law prohibits you from having a pet in your apartment?
Let’s dissect the 2020 case Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 (the Cooper Case) to figure it out.
The Cooper Case
Mrs Cooper is a proud dog owner of her (adorable) miniature schnauzer, Angus.
The Horizon in Sydney, Australia is a 43-storey apartment block that via its by-laws prohibited animals from residing on its premises.
For four years Mrs Cooper fought to overturn Horizon’s by-laws prohibiting pets in apartments.
Horizon’s by-laws stated:
| By-law 14 Animals14.1 … an owner or occupier of a Lot must not keep or permit any animal to be on a Lot or on the Common Property. |
Mrs Cooper argued that by-law 14 was harsh, unconscionable and oppressive under both ss 139 and 150 of the Strata Schemes Management Act 2015 (NSW).
As such, Mrs Cooper was arguing that by-law 14 should be invalidated.
The issue that the NSWCA had to determine was whether or not by-law 14 was harsh, unconscionable and oppressive under ss 139 and 150 of the Strata Schemes Management Act 2015 (NSW)
What was decided?
The three NSWCA judges unanimously held that by-law 14 was in fact harsh, unconscionable and oppressive in accordance with ss 139 and 150 of the Strata Schemes Management Act 2015 (NSW).
The Court ordered that by-law 14 be removed.
Impacts Of The Cooper Case
So, what does the Cooper Case mean for pet owners wanting to move into apartment blocks, retirement villages or caravan parks?
The Cooper Case ruling means that properties covered under ‘strata title’ can no longer pass by-laws blanket banning animals from residing in individually owned units.
1. What This Means For Residents
You can not be prohibited from having your pet live with you—hooray!
Mrs Cooper’s four year long battle has paid off, allowing you and your furry friend to cohabitate.
Although this ruling is a big win, it is important to consider other by-laws that might still remain in place. These include noise restriction by-laws. This is something you may want to consider if your pet barks or screeches.
On the contrary, if you are a resident and absolutely terrified of pets or are allergic, the decision in the Cooper Case may concern you a bit.
In accordance with NSW Fair Trading, pets must not negatively impact other residents.
While the ruling in the Cooper Case makes it difficult to blanket ban pets, if your fellow neighbour pets are negatively impacting you, it may be a good idea to have a chat with your property’s owners corporation or your landlord to work something out.
2. What This Means For Investment Property Owners
If you are an investment property owner, you may be slightly concerned that your tenants will begin running a zoo out of your property.
Although this is highly unlikely, we understand your stress.
The Cooper Case sends a clear message that pets should not be banned from residential properties. When considering the far-reaching ruling in the Cooper Case, it is unlikely that you would be able to ban your tenants pets.
However, it is important to note that NSW Fair Trading states that a tenant must always gain their landlord’s permission prior to residing with their pet.
While you cannot ban your tenants pets through strata by-laws, your tenant must still:
- Supervise their pet
- Clean up any common property that is soiled
- Ensure that their pet is not noisy or negatively impacting other residents.
What About An Appeal To The High Court Of Australia?
Never say never.
Since The Cooper Case was heard in the NSW Court of Appeal, its decision can be appealed to the High Court of Australia.
At the time of writing, however, no applications have been made to the HCA.
As for now, the recent decision made by the NSWCA in The Cooper Case remains.
Hooray For Pet Owners!
So, the Cooper Case is a big win for pet owners, that’s for sure!
NSW parliament is expected to be meeting soon to review Strata laws. Perhaps we can expect the decision in the Cooper Case to be reflected in future legislation.
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