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  • #74421
    cookie3186
    Flatchatter

      I am looking to buy a villa in NSW. I have the contract of sale and have been going through it. I am just reading the strata plan and under the pet ownership clause it states that an owner or occupier  must not keep a pet on the complex unless it’s an assistance animal or an animal for medical purposes.
      It was my understanding as long as the animal kept within the peace of the other residents on the lot that strata were not unreasonably be allowed to withhold pet ownership. Or is this a simple loop hole in the system as they have stated that you can have a pet as long as it’s an assistance animal.
      would I have a case if I were to look into owning an animal and wished to challenge them on the by law in place

      • This topic was modified 1 month, 2 weeks ago by .
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    • #74439
      The Hood
      Flatchatter

        Great post. My OC has a no dogs or cats by-law. Simply put they believe they can make an owner remove an animal because it is a cat or dog.
        The interesting part for you is that I took our by-law to NCAT and ask the Member to run the tests in Cooper (the famous Cooper case that led to the new pets by-laws).

        Our by-law is dead in the water if the Member runs the test but the Member did not run the tests, instead the Member went all in on equity. A little something for everyone.

        This is the crux of the decision.
        9. The above section 137B invalidates any existing “blanket ban” in relation to keeping of animals as may presently exist within any strata scheme. It also places an onus upon neighbours or strata management to be able to satisfactorily demonstrate that actual unreasonable interference with other lot owners or users of common property has been caused by the keeping of a particular animal upon a lot.

        10. Section 137B operates irrespective of any by-law. This does not however mean that the body corporate lacks power to make any particular relevant by-law and that the Tribunal should therefore make an order such as is presently sought. The section simply renders inoperative the application of any such by-law in relation to a particular animal in the absence of satisfactory evidence of unreasonable interference by that animal with neighbourhood amenity.

        K Rickards Tribunal Member
        SC 21/48504 (unreported)

        It seems a OC can have any old rubbish as a pet by-law but s 137B operates independent of the rubbish.

        Had the Tribunal run the Cooper tests the by-law would have been invalidated, instead the by-law remains on the books but it is made clear in the decision the by-law does not effect the operation of s 137B.

        Your by-law is not worth the paper it is written on as s 137B should prevail if the by-law is tested, but  NCAT is not fit for purpose so that spices things up.

        #74467
        Sir Humphrey
        Strataguru

          That quoted text from the ruling seems to suggest there might have been bits of the by-law that could apply in some circumstances. Perhaps it said something specific about how it would be handled if an animal were a proven nuisance? Otherwise, I think the ruling just says an owners corporation is welcome to have a bylaw saying whatever it likes but it would be of no effect to the extent that it contradicts existing legislation. Really that is just a restatement of what is in every strata legislation. An OC’s bylaws or articles or rules (different names in different places) generally only apply to the extent that they are not inconsistent with legislation. Find the inconsistency and you can disregard the bylaw.

          #74475
          Jimmy-T
          Keymaster

            Or is this a simple loophole in the system as they have stated that you can have a pet as long as it’s an assistance animal.

            The assistance animal clause has been there for years, even before the recent law changes.

            I suspect that the strata manager or owners corp hasn’t changed the by-law because they felt they didn’t need to.  I would be very confident that you could have your pet but if you wanted to be sure you could write to the strata secretary and tell them that their by-law is out of date and you won’t be abiding by it.

            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.
            #74492
            Patrosco
            Flatchatter

              Perhaps they haven’t changed it because its presence ‘on the books’ still works to discourage those pet owners who do not want the aggravation of challenging it.  This type of passive bulling is not uncommon in our strata world.

              • This reply was modified 1 month, 2 weeks ago by .
              #74487
              Quirky
              Flatchatter

                I think the crux of the “Cooper” case is that the OC must demonstrate actual, real world,  interference with the amenity of other residents. In other words, by-laws that ban any pets because they might create a problem are invalid. But pet by-laws that allow for the removal of pets that actually do create a problem are valid.

                So, if you keep a pet, and then the OC takes action to uphold their by-law against you, they will fail unless they have evidence that your pet is creating a real world nuisance.

                The argument that some other owners don’t like pets, or that pets are dirty would not hold up, without evidence that an owner is terrified of dogs (say) or that your pet pooped on the front lawn of the building (say). Even then, the nuisance has to be a reasonable one. A one-off incident probably would not count, and they would need evidence of a persistent problem.

                In the decision from @TheHood  the key terms are “actual unreasonable interference” and “a particular animal in the absence of satisfactory evidence of unreasonable interference by that animal with neighbourhood amenity”. I’m not sure what the case was about exactly (maybe provide a copy of the decision?), but if it was just to invalidate the pet by-law, I can understand why that lost.

                An OC may have a by-law that allows pets to be removed. But they can only do that for a specific pet, for specific reasons based on clear evidence of mischief, that interferes with at least one other resident’s enjoyment of their property, with evidence of that required.

                And the only way that can work, is for the pet to be in residence in the building already. So a pets by-law generally can’t easily prevent a pet being kept on the property initially, but once it is there, if it makes a nuisance of itself, then the by-law can allow for its removal.

                An exception is where any pet coming on to the property must always create a nuisance – eg large dogs in a building designed for elderly or infirm residents, or cats in buildings that are havens for native birds or beside a national park.

                • This reply was modified 1 month, 2 weeks ago by .
                #74498
                Jimmy-T
                Keymaster

                  So a pets by-law generally can’t easily prevent a pet being kept on the property initially, but once it is there, if it makes a nuisance of itself, then the by-law can allow for its removal.

                  You don’t need a by-law to remove a pet that proves to be a nuisance after it has been permitted.  Section 158 (below) provides for that exact contingency.

                  However you could theoretically have a by-law that forbids pets that would be likely to create a nuisance, in the situations that you mention, such as cats in a bird sanctuary or large dogs in a scheme with substantial numbers of elderly people.

                  You might even consider a by-law where there are residents with proven phobias or deep-seated cultural or religious antipathy toward having animals around  – although how that would be worded and enforced is another matter.

                   

                  158   Order for removal of an animal permitted under by-laws

                  (1)  The Tribunal may, on application by an interested person, make an order against a person who is keeping an animal on a lot or common property in accordance with the by-laws for a strata scheme, if the Tribunal considers that the animal causes a nuisance or hazard to the owner or occupier of another lot or unreasonably interferes with the use or enjoyment of another lot or of the common property.

                  (2)  The Tribunal may order that the person—

                  (a)  cause the animal to be removed from the parcel within a specified time, and be kept away from the parcel, or

                  (b)  within a time specified in the order, take such action as, in the opinion of the Tribunal, will terminate the nuisance or hazard or unreasonable interference.

                  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.
                  #74499
                  ruben
                  Flatchatter

                    What about the landlord who simply doesn’t want to rent to a tenant with a cat or dog? In our scheme, there is the appropriate by-law that allows cats and dogs on application and no applications have so far been refused. But if the owner of an apartment decided that they don’t want pets in the apartment, can they simply refuse to let the apartment to anyone who wants to bring in a dog or cat?

                    #74501
                    Sir Humphrey
                    Strataguru

                      A landlord’s tenancy conditions just for their unit is a separate matter from the owners corporation’s rules/bylaws that apply to all residents. I don’t know what NSW tenancy laws have to say about pet restrictions that landlords might want to impose.

                      #74502
                      The Hood
                      Flatchatter

                        Otherwise, I think the ruling just says an owners corporation is welcome to have a bylaw saying whatever it likes but it would be of no effect to the extent that it contradicts existing legislation.

                        Nailed it, that is what it distills down to.
                        It was taken by the anti dog element to mean the by-law is valid, they missed the part about s 137B.

                        #74504
                        Jimmy-T
                        Keymaster

                          I don’t know what NSW tenancy laws have to say about pet restrictions that landlords might want to impose.

                          This from the TenantsNSW fact sheet on pets:

                          There is no term in the Residential Tenancies Act 2010 that prohibits you from keeping a pet, or that requires you to ask for your landlord’s consent before you keep a pet. However, many landlords will include a clause restricting pets in the residential tenancy agreement (i.e. your lease), and there is no specific ban on them doing so. The Tenants’ Union believes that such a restriction is a breach of your reasonable peace, comfort and privacy, however this has not been fully tested before a court or the Tribunal.

                          The standard form of the residential tenancy agreement issued by NSW Fair Trading includes additional terms which require you to have your landlord’s consent to keep animals. Additional terms may be crossed out when you and the landlord sign the agreement, but if they are not crossed out, they will apply to your agreement.

                          By the way, the Tenants’ Union websites in the various states are just about the only authoritative source of information for both tenants and landlords.  Just click on tenants.org.au and it will take you to the relevant site for your state.

                          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.
                          #74505
                          Jimmy-T
                          Keymaster

                            I don’t know what NSW tenancy laws have to say about pet restrictions that landlords might want to impose.

                            This from the TenantsNSW fact sheet on pets:

                            There is no term in the Residential Tenancies Act 2010 that prohibits you from keeping a pet, or that requires you to ask for your landlord’s consent before you keep a pet. However, many landlords will include a clause restricting pets in the residential tenancy agreement (i.e. your lease), and there is no specific ban on them doing so. The Tenants’ Union believes that such a restriction is a breach of your reasonable peace, comfort and privacy, however this has not been fully tested before a court or the Tribunal.

                            The standard form of the residential tenancy agreement issued by NSW Fair Trading includes additional terms which require you to have your landlord’s consent to keep animals. Additional terms may be crossed out when you and the landlord sign the agreement, but if they are not crossed out, they will apply to your agreement.

                            By the way, the Tenants’ Union websites in the various states are just about the only authoritative source of information for both tenants and landlords.  Just click on tenants.org.au and it will take you to the relevant site for your state.

                            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.
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