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Hi,
Q.1 I exchanged contracts on my strata unit on 4 Aug 2010 at which time I knew the ByLaw 16 was Option (A). The previous tenant in the unit I bought had a cat and a unit under me had a small dog. Unbeknown to me they had not been given approval for pets. 2 weeks before settlement (settlement was 7 Sept) I wrote to Strata requesting my 2 small house dogs (one is 13 and the other 8) be permitted – it was at this time that the Strata told me that ByLaws to the property had been “repealed” from Option A to Option C (no aminals at all). The new ByLaw was registered on 11 Aug 2010. Which By Law do I fall under?
Q2. Even though Option A had been in place for many years the Owners Corporation never allowed pets. In previous Minutes its even been stated that “this building has always had a no pets policy”. Ive searched through Strata Management’s communications between them and our Owners Corporation and in numerous emails the Strata has told the OC that they cannot
enforce a no pets policy under the Section 16 Option (A) by law. It appears to me that this OC have made their own ‘house rule’ about pets and have had done so for years.
The OC have formally informed me that I will be getting a Notice to Comply to get my dogs out and will be taking me to the CTTT. Im hoping I have a good chance of keeping them, depending on which ByLaw I fall under from date of exchange and changing ByLaws overlapping. My solicitors got a strata search dated 6 Aug stating the upcoming change of by law but stated “… We have no proof of registration …”, but they did not inform me of this.
Am I right to assume that our OC have taken it upon themselves to have their own house rule regarding having no pets allowed? A group of 8 or 9 people (2 of which dont even live in the building) out of a total of 30 units cannot run the building on their own opinions.
Sorry to rant on but theres a bit involved. What do you think my chances would be at CTTT? Regards Lyn
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Replies
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I'm confused.
1. To what extent do Supreme Court rulings in Queensland create a precedent for NSW strata?
2. Isn't this (below) the current 'model' by-law on pets in NSW?
16 Keeping of animals
(1) Subject to section 49 (4), an owner or occupier of a lot must not, without the approval in writing of the owners corporation, keep any animal on the lot or the common property.
(2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property.
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The Strata Schemes Management Regulations 2010 have 6 sets of model by-laws depending on the situation;
Schedule 2 Model by-laws for residential strata schemes
Schedule 3 Model by-laws for retirement villages schemes
Schedule 4 Model by-laws for industrial schemes
Schedule 5 Model by-laws for hotel/resort schemes
Schedule 6 Model by-laws for commercial/retail schemes
Schedule 7 Model by-laws for mixed use schemes
The Schedule 2 by-laws are for residential strata schemes and by law 17 (not 16 as i misprinted in my earlier post) offers 3 options; A,B and C with C being the prohibitive, no pets, version.
The model by-law you quote is option A (of A,B and C) from Schedule 3 which is for retirement villages and is also option A for by-law 17 for residential strata in Schedule 2.
The whole Strata Schemes Management Regulations 2010 are here
The case from the Queensland Supreme Court has references to High Court cases. As Simone states “The decision refers to two High Court cases – Swan Hill v Bradbury and Brunswick v Stewart which also discuss the validity of prohibitory by-laws. “
It is the High Court content that is relevant regardless of what State one wants to wave it about in. The High Court cases were quite persuasive in the Queensland case.
It seems the High Court feel by-laws should be regulatory and not prohibitory – hence i wonder about the model by-laws having prohibitive options.
Are the model by-laws out of touch with the expectation of the High Court and so should the option be removed from the Regs?
Should existing prohibitive pets by-laws be open to challenge given by-laws are to be regulatory and some SP have changed them from regulatory to be prohibitive — or originally adopted a prohibitive approach?
So we have one set of by-laws in the the Strata Act – which are optional – and six sets of (also optional) by-laws in the regulations. Not only that, in those model by-laws in the regulations for residential strata developments, there are three options.
And then, depending on which precedent you take from which jurisdiction they may or may not be legally enforceable even if you adopt them as your by-laws.
What a crock! No wonder the CTTT is going round in circles, disappearing up its own wazoo.
OK, as of now, I am not interested in theoretical arguments about what might pertain in this situation or that. I'm happy to leave that to lawyers to argue over and, hey, if it was all straightforward and obvious, then they would be out of a job.
I appreciate everybody who's trying to work all this stuff out but as of this moment, I want to read practical advice based on real experience. These hypotheticals make my head hurt and, I don't think they get us very far.
I might open a forum for legal hypotheticals but right now, a lady wants to know if she can have a cat and in that regard, I would say one thing – if you get a pet in breach of what appears to be the by-laws, be prepared for some heartbreak if it turns out that those by-laws apply.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
JimmyT said:
…… – if you get a pet in breach of what appears to be the by-laws, be prepared for some heartbreak if it turns out that those by-laws apply.
Absolutely right…. and the big grey areas are
- will the Owners Corporation try to apply them,
- can the Owners Corporation be egalitarian in there management
- will CTTT actually apply them.
The whole thing is a circus that leaves owners with little clarity as to what to expect and the real kicker is that by-laws can change.
I do not think the range of choices of by-laws is too big an issue as it is a decision at registration time and then the owners can amend them in the future to better suit their needs.
For the benefit of the readers try this real life case; SCS 02/29788. An adjudication where an elderly EC member ignored the keeping of animals bylaw and got a dog.
The adjudicator allowed the dog to stay and suggested the Owners Corporation amend its prohibitive by-law.
The prohibitive by-law in that case was worthless.
For something a little fresher try SCS 10/40772: Tang v Owners Corporation SP 71379 (Strata and Community Schemes) [2011] NSWCTTT 160 (19 April 2011) CONSUMER, TRADER & TENANCY TRIBUNAL
The adjudicator decision was overturned on appeal and the dogs were allowed to stay. Still
I completely agree with the comments found elsewhere in the forum that it is not the pets by-laws that need to be strong; what needs to be strong is the by-law to deal with unruly, noisy or troublesome pets and their owners.
Billen Ben has made some excellent points.
We believe that by-law 17 Option B in the new 2010 model by-laws is a good by-law, that can be enforced within schemes –
17 Keeping of animals
Option B
(1) Subject to section 49 (4) of the Act, an owner or occupier of a lot must not, without the prior written approval of the owners corporation, keep any animal (except a cat, a small dog or a small caged bird, or fish kept in a secure aquarium on the lot) on the lot or the common property.
(2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property.
(3) If an owner or occupier of a lot keeps a cat, small dog or small caged bird on the lot then the owner or occupier must:
(a) notify the owners corporation that the animal is being kept on the lot, and
(b) keep the animal within the lot, and
(c) carry the animal when it is on the common property, and
(d) take such action as may be necessary to clean all areas of the lot or the common property that are soiled by the animal.
An owners corporation can modify this by-law to include provisions in respect of behaviour of pets and their enforcement policy for troublesome pets. However, it would be unreasonable to include provisions such as “no barking allowed” or “if your dog barks then it will be removed”.
Simone Balsara
Lawyer
TEYS Lawyers, The Strata Law Experts
02 9562 6500 – 1300 TEYSLAWYERS
Suite 73, Lower Deck, Jones Bay Wharf
26-32 Pirrama Rd, Pyrmont NSW 2009Hi Simone Im the originator of this topic and wanted to say thenkyou for your valued information and advice, and thanks to everyone whose contributed. Ive been in my unit a year in Sept and OC are still trying to get my 2 small 'old' dogs out, even though Strata have told them in writing that they cant enforce it (I have a copy). Cant believe the stupidity of some, they must feel a need to spend the unit owners' levy monies. They were quiet for a few months and I thought they let it be, but it was brought up again at our AGM on 1/8. In Feb they sent me a Notice to Comply so I contacted Fair Trading and they advised I reply in writing (addressed to the Secretary of the OC) to the Notice in detail, and request a written reply. I did this but never got a reply from any of the OC members. We will be going to Adjudication. Ive kept a huge file full of email communications between OC and Strata (I paid and searched the Strata files personally), and so much more. After I win this fight Im going to apply to revoke this “no pets” By Law and try and have it changed to Option B still giving the OC an opportunity to modify it in respect of behaviour etc as youve suggested. I also found the research report from UWS Professor interesting and totally agreed with his notes. Pets do make people feel happier and healthier…..
I'll keep you informed of what happens at Adjudication so it might assist others. Lyn