Conveyancing: Every dog has its day – strata schemes and pets in NSW
On 24 February 2021 the NSW parliament passed the Strata Schemes Management Amendment (Sustainability Infrastructure) Act 2021 which provides that owners corporations will not be able to unreasonably deny permission for residents to have pets in NSW.
The Act follows an earlier decision in the NSW Court of Appeal matter in Cooper v The Owners – Strata Plan No 58068 when the Court handed down the unanimous decision that an owners corporation could not enforce a by-law which imposed a blanket ban on animals.
The Cooper case highlights that powers of the owners corporation regardless of whether they are set out in the by-laws are not unconstrained. For any by-law to be valid under the Strata Schemes Management Act, it must be directed towards the prevention of lot owners using their lots or the common property in a way which could rationally impact upon other owners’ enjoyment of the building.
A by-law which restricts the lawful use of each lot on a basis which ‘lacks a rational connection with the enjoyment of other lots’ is beyond the power set out in section 136(1) of the Act. The new section 137B of the Act commenced on 24 August 2021 and provides that a by-law will have no force or effect to the extent that the by-law purports to unreasonably prohibit the keeping of an animal on a lot. Consistent with the principles in the Cooper case, if an animal does not interfere with another occupants use and enjoyment, prohibiting the keeping of an animal will be unreasonable and have no effect.
