No-pets by-law survives in NSW

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.

cookie3186 wrote:

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have your pet but if you wanted to be sure you could write to the strata secretary and tell them that their by-law is out of date and you won’t be abiding by it.

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 4 months, 2 weeks ago by .

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?

Sir Humphrey wrote:

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.

Sir Humphrey wrote:

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.