Despite the much anticipated “pet-friendly” amendments to the new strata legislation, animals are still not automatically permitted in strata schemes even if they are kept wholly within the boundaries of an individual’s apartment.
To determine what the keeping of animals position is in relation to any particular scheme you must refer to all the by-laws registered on the certificate of title for the common property.
Schemes in NSW registered before the 1996 Legislation
If a scheme was registered before the 1996 legislation, and the old Schedule 1 model by-laws applied to your scheme, and there is NO special by-law which repeals or amends the standard position, the keeping of animals stance is now governed by the Strata Schemes Management Regulation 2016 (NSW), Schedule 1 By-law 16 Keeping of animals:
- “Subject to section 157 of the Strata Schemes Management Act 2015 , 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.”
- “The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property”.
Schemes in NSW registered after the 1996 Legislation
If a scheme was registered after the commencement of the 1996 legislation, the by-laws adopted or registered will determine the position. What the new legislation has introduced is a new model by-law which has a default position which expressly permits the keeping of animals (on conditions). Note, however, that the model by-laws must be adopted by a scheme or lodged with the strata plan at the time of registration”.
Also note that if no option is nominated (or left blank), the default position (Option A) permits the keeping of animals:
Option A
(1) An owner or occupier of a lot may keep an animal on the lot, if the owner or occupier gives the owners corporation written notice that it is being kept on the lot.
(2) The notice must be given not later than 14 days after the animal commences to be kept on the lot.
(3) If an owner or occupier of a lot keeps an animal on the lot, the owner or occupier must: (a) keep the animal within the lot, and (b) supervise the animal when it is on the common property, and (c) take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal.
Option B
(1) An owner or occupier of a lot may keep an animal on the lot or the common property with the written approval of the owners corporation.
(2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property and must give an owner or occupier written reasons for any refusal to grant approval.
(3) If an owner or occupier of a lot keeps an animal on the lot, the owner or occupier must: (a) keep the animal within the lot, and (b) supervise the animal when it is on the common property, and (c) take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal.
(4) An owner or occupier of a lot who keeps an assistance animal on the lot must, if required to do so by the owners corporation, provide evidence to the owners corporation demonstrating that the animal is an assistance animal as referred to in section 9 of the Disability Discrimination Act 1992 of the Commonwealth.
In case of Option B, the Owners Corporation must be reasonable and consider each application for the keeping of animals on a case by case basis on its merits.
Is an animal-free strata building possible?
Overall, however, it is still open to the Owners Corporation to have an animal free building (provided it passes a by-law to that effect, assistance animals excepted). Importantly, such by-law could not ban existing pets, and would only apply to future pets from being accepted in the strata scheme. It would require 75% of the owners at a general meeting to agree to this updated by-law.
The new legislation retains rights for interested persons to make application to NCAT to have an animal removed from the building if it is proven that it causes a nuisance or hazard to another owner/occupier or unreasonably interferes with the use or enjoyment of another lot or of the common property. An interested person includes an Owners Corporation, a strata managing agent, a lot owner or occupier.
Assistance animals as defined in the Disability Discrimination Act are exempt
The only animals which cannot be prohibited within any strata scheme are assistance animals (footnote 2) as referred to in Section 9 of the Disability Discrimination Act 1992 of the Commonwealth (footnote 3). The Owners Corporation may pass a by-law in connection with a person who keeps an assistance animal on a lot to prove to the Owners Corporation that the animal is a duly qualified assistance animal.
An assistance animal is defined as a dog or other animal which is properly accredited or trained in such a way so as to assist a person with a disability to alleviate the effect of the disability and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.
What about tenants and their pets?
Tenants can raise any pet related matters to their landlord. They could ask the landlord to submit a motion to consider adopting a pet-friendly by-law, however the landlord is not obliged to do this. Changing to a pet friendly by-law could help other owners rent out their unit in the same strata scheme.
Footnote 1: The options are set out in STRATA SCHEMES MANAGEMENT REGULATION 2016 – SCHEDULE 3 – Model by-laws for residential strata schemes
Footnote 2: Section 54A Disability Discrimination Act 1992 of the Commonwealth provides that it is not unlawful to discriminate against a person with a disability if, for example, the assistance animal has an infectious disease.
Footnote 3: See Section 139(5) which states that “A by-law has no force or effect to the extent to which it purports to prohibit or restrict the keeping on a lot of an assistance animal (as referred to in section 9 of the Act) used by an owner or occupier of the lot as an assistance animal or the use of an assistance animal for that purpose by a person on a lot or common property”.
Please note: This article covers legislation as per the Strata Schemes Management Act, 2015 (NSW), which was introduced on 30 November 2016. Any pre-dating articles on this website covering similar topics might no longer accurately reflect current legislation.
This article is not intended to be comprehensive nor does it constitute legal advice. The article provided is general and for your information and interest only.