Last week, the NSW Court of Appeal ruled that a by-law placing a blanket ban on pets being kept in a strata scheme contravened the Strata Schemes Management Act 2015.
On 12 October 2020, the NSW Court of Appeal handed down the decision of Cooper v The Owners – Strata Plan No. 58068 [2020] NSWCA 250 (“Cooper”) which is a landmark decision for pets in a strata scheme.
The proceedings first began in the NSW Civil and Administrative Tribunal (NCAT), when the Owners Corporation of a residential building in Darlinghurst commenced proceedings against the Coopers to remove their fourteen year old miniature schnauzer from the building as they had disobeyed the by-law relating to animals being kept in the building. The by-law stated that “an owner of a Lot must not keep or permit any animal to be on the Lot or the Common Property”.
The Coopers lodged a cross claim against the Owners Corporation on the basis that the by-law was invalid.
At first instance, the Coopers were successful, and the Tribunal ruled that the by-law contravened the Strata Schemes Management Act 2015 however this decision was overturned by the Appeal Panel of NCAT. The Tribunal held that a by-law refusing the keeping of animals in a strata scheme “is not, itself, impermissible” under the legislation and given that the Coopers would have been aware of the by-law when they purchased the property, the Owners Corporation were successful.
The Coopers appealed this decision to the NSW Court of Appeal and were successful in their claim. The NSW Court of Appeal upheld NCAT’s initial determination and ruled that a by-law which denied the keeping of animals contravened the s139 of the Strata Schemes Management Act 2015 which says that a by-law must not be “harsh, unconscionable or oppressive”.
This decision will set a precedent for pets in strata schemes in NSW and will allow owners to challenge a by-law that creates a blanket ban for pets in a strata scheme.
Kydon Segal Lawyers has a team of experts with extensive knowledge in strata and property law. If need any advice on pets in a strata scheme or any other related matter, contact our team and we will be happy to be of assistance! Contact Kydon Segal Lawyers today.