New pet-friendly strata laws about to bite

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MPs Alex Greenwich and Emma Hurst with Alex's rescue dog Max.

A change in NSW strata law that comes in next week will radically alter the default position on pets in NSW strata schemes, bringing relief to pet owners and some certainty to strata schemes confused by recent legal decisions on pet ownership.

From August 24, any by-laws that unreasonably prohibit owners from keeping pets will be invalid and unreasonable delays in reaching a decision on whether or not to accept pets will be taken as approval.

However, there will be provisions to protect residents for whom the presence of animals in the block would “unreasonably interfere” with their health or wellbeing.

“From August 24, a new section 137B to the Strata Schemes Management Act 2015 will mean that by-laws which unreasonably prohibit the keeping of an animal on a lot will have no force or effect,” confirms Rebecca Moufarrege, a partner with Sachs Gerace Lawyers

“It will be considered reasonable to keep an animal on a lot unless that unreasonably interferes with another resident’s use and enjoyment of their lot or the common property.”

In short, the default position for strata schemes is that pets are allowed but owners corporations can still pass “reasonable” restrictions on pets via by-laws. The thinking behind this seems to be that strata schemes must have at least considered why they were banning or restricting animals and it can’t be on a basis of worst-case scenario fears that there might be problems.

Significantly, refusal of a pet in breach of Section 137B will be deemed as permission given.  The same applies when committees have not responded to requests to keep companion animals withing a reasonable time.

The clear exception will be when keeping the animal unreasonably negatively affects other residents.

How exactly that plays out remains to be seen, but a lot of the detail will be spelled out in the strata regulations that will follow the revised Act coming into force.

And the key words that keep coming up in the legislation and commentary are “reasonable” and “unreasonable” which are pretty vague and could be subjective.

The solution to that will be a review by the minister of the workings of the Act (under Section 276A) which all concerned migh hope will at least narrow the definition of those trigger-word terms.

These changes to strata law, attached by Upper House members as an amendment to provisions for sustainability-based alterations in strata schemes, were approved in February this year.

They had first been proposed by Animal Justice Party MSP Emma Hurst and were then wrangled by Independents MSP Alex Greenwich into a measured response to the NSW Court of Appeal decision last year in which owner Jo Cooper successfully challenged a “no-pets” by-law in the Horizon building in Darlinghurst, Sydney.

With the new law coming into effect, strata schemes are being advised to examine their current pet by-laws to see if they comply with the amended Act.  Schemes that still have blanket “no pets” by-laws could find they now have no by-law at all, effectively managing or restricting pets in their buildings.

Here is the amendment in full

137B Keeping of animals

(1) Each of the following has no force or effect to the extent that it would unreasonably prohibit the keeping of an animal on a lot—
(a) a by-law,
(b) a decision by an owners corporation under a by-law.

(2) It is taken to be reasonable to keep an animal on a lot unless the keeping of the animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property.

(3) The regulations may specify circumstances in which the keeping of an animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property.

(4) A by-law that prohibits the keeping of an animal on a lot is not harsh, unconscionable or oppressive if it does not unreasonably prohibit the keeping of an animal on a lot.

Note. Section 150(1) provides that the Tribunal may declare a by-law to be invalid if it is harsh, unconscionable or oppressive.

(5) An owners corporation is taken to have given permission for the keeping of an animal on a lot if—
(a) it made a decision about the keeping of the animal in contravention of subsection (1)(b), or
(b) a decision of the owners corporation is required before the animal may be kept on the lot and the owners corporation failed to make a decision within a reasonable time.

(6) If a report has been tabled in Parliament under section 276A, the Minister must not recommend the making of a regulation under this section unless the Minister has considered the report.

(7) Subsection (6) is repealed 5 years after the commencement of this section.

Section 276A refers to a requirement that, within six months, the Better Regulation Minister reviews the whole issue of keeping animals in strata properties.  This is what it says:

276A Review of keeping of animals

(1) The Minister is to review this Act as it relates to the keeping of animals on lots in strata schemes, including by addressing the following matters—
(a) the circumstances in which it is reasonable to prohibit the keeping of animals,
(b) the impacts of kept animals on the health and wellbeing of residents,
(c) the barriers faced by residents in the keeping of animals and by persons who require assistance animals, including vulnerable persons, Example. Persons fleeing domestic violence.
(d) the welfare of kept animals,
(e) how to limit any adverse impacts of kept animals on common property, including the adequacy of existing laws to deal with this,
(f) to resolve disputes about the keeping of animals,
(g) the effects of a change to the by-laws for a scheme that prohibits the keeping of an animal that was lawfully kept on a lot before the change.

(2) The review is to be undertaken as soon as possible after the commencement of this section.

(3) A report on the outcome of the review is to be tabled in each House of Parliament within 6 months after the commencement of this section.

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