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Hello everyone,
We own an apartment in Sydney and have owned it for 3 years.
The Strata ByLaw that is currently in place is 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.
When we purchased the property we gained approval for a dog who has lived in the building for 2 years without any issues or complaint. In fact we have in writing from the secretary of the SC that we are exemplary pet owners.
My question relates to an issue that’s arisen when we recently applied for approval to keep a second dog. There is a lot of politics in the OC (2 warring factions) and one side is fearful that the other will oust them from Committee if they are seen to be favouring our application (my husband is on the Committee)). However, the SC have not provided approval or rejection. It’s now been 19 days since we applied and we have collected the puppy as she turned 8 weeks of age.
To protect themselves politically they are saying there are concerns around the number of pets in the building (there is now another dog and a cat that’s been approved in a 24 apartment building) and 2 members of Committee are now advocating to change the ByLaw to a No Pets ByLaw (for any future pets). The next OC GM is in 4 months’ time. They are suggesting that our application will be addressed then. We have requested numerous times for any concerns regarding our specific application to be communicated to us so we may respond, that they should be assessing our application without favour or disadvantage on it’s own individual merits, that concerns around setting a precedent have previously been dismissed by Tribunal in a previous case (as each application is individually assessed), and we have asked numerous times for a response.
Am I right in the assumption that given our application was made when the existing ByLaw is in place that they must respond to our current application accordingly, treat it on it’s own merits and not delay for 4 months whilst they attempt to rally support for a No Pets ByLaw change?
And given our exemplary pet ownership history and that the 2nd dog is the exact same breed (albeit a puppy) that they are unreasonably withholding approval?
It’s causing great stress that a few people are impacting so greatly on what the make-up of our family can look like.
Further, I have drafted a “Pet Policy” including an application form and an agreement that could be added to House Rules or become an amended ByLaw. This was done for the Committee so they could demonstrate to some other politically motivated members of the OC that the existing Committee is reviewing pet applications in a diligent fashion. I’m trying to help however I can.
I’d really appreciate any advice or views on the above, particularly regarding time frame of response from SC and whether they are obligated to respond to our application under the current ByLaw. Also, are we better off just sitting tight and waiting for them to ‘do something’ rather than us initiating any action regarding mediation or tribunal? Or should we start rallying our own support from owners to change the ByLaw to the one that I have written (it’s pet friendly but with a lot of detailed expectations, restrictions and agreements by owners/residents).
Also, any advice or direction to a Strata Pet expert Lawyer in case we need it would be much appreciated!
Thanks so much!
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Am I right in the assumption that given our application was made when the existing ByLaw is in place that they must respond to our current application accordingly, treat it on it’s own merits and not delay for 4 months whilst they attempt to rally support for a No Pets ByLaw change?
Yes you are right, since you have requested permission during your current by-law, your request would fall under that by-law.
And given our exemplary pet ownership history and that the 2nd dog is the exact same breed (albeit a puppy) that they are unreasonably withholding approval?
Only the Tribunal can determine that. Everyone will have a different view on what ‘reasonable’ is. What you may feel is ‘reasonable’ may not be ‘reasonable’ to another owner within your scheme.
You certainly have the option to take the matter to the Tribunal arguing that the OC are taking too long to provide a response. However what you have done incorrectly is what many owners try do, which is, you obtained an animal before obtaining approval from the owners corporation (regardless of how long the OC is taking to provide a response).
Technically you may be in breach of your animals by-law presently. Just because you haven’t heard back from the OC regarding your request for a second dog, this doesn’t give you or any other owner the right to simply take matters into your own hands and bring a new dog into your premises. Your OC could issue you a notice-to-comply and pursue you through the NCAT for a penalty or an order to remove the animal.
Certainly you can rally owners together to try change the keeping of animals by-law in your scheme to a more ‘pet friendly’ version. I guess you could make an application to the NCAT for an order, however since you may be in breach of a by-law, not sure how this will look in front of a Tribunal member.
Chomleychum – It is difficult to assess whether the time taken has been unreasonably long without knowing all of the facts.
How was your first pet approval obtained – was it by a Committee meeting or was it by a General Meeting? Sometimes these matters are dealt with at a Committee meeting and not a General Meeting. The Committee has the authority to act on behalf of the OC in various types of matters. A Committee meeting may not have occurred within the 19 day time frame.To my knowledge there is no ability in the NSW Legislation to permit voting outside of a Committee meeting, as there is in QLD Legislation – but I may be wrong.
How long did your previous pet approval take?
If I was in your position I would send an email to the Secretary of the OC via the Strata Manager outlining your need for a hasty decision and specify a date that you expect a written reply by. Follow this up with a letter. Each request is treated on a case by case basis. Note that I wrote “reply” not “decision”. Include in this letter that you intend to exercise your right to take this issue to Mediation if necessary.
This may be your only option if you cannot wait for 4 months for a decision. You have applied for a pet under the existing By-laws therefore it is my assessment that your matter should be dealt with under the existing By-laws. To refuse a pet based on assumption that a By-law will possibly change does not seem reasonable to me.
You can apply for a ruling at NCAT under section 232 if the strata committee has failed to respond within two months or has responded unfavourably within that period.
The other respondents are right in saying that you have put yourself at a disadvantage by getting the pet before you got approval but you could respond that the SC’s failure to reply made you think it was OK.
Regarding the proposed by-law there is a stack of evidence that restricting pets lowers the value of properties, if only because it removes 30 percent of potential purchasers and tenants.
Also, the law says that no by-law can be “harsh, unconscionable or oppressive.” A by-law that banned pets in a building that already had them would probably fall into that particular pothole.
Once you have sorted out your own position, you would be well advised to let other owners know of the potential problems with a no-pets by-law – it could be very expensive for all owners even trying to get one in place.
Finally, I have never heard of a specialist strata pets lawyer – but the first legal eagle to put that on their shingle will make a motza.
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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