Pet ownership is on the rise. More than 60% of Australian households own a pet and for some, these pets are considered a valued member of the family. The number of Australians living in apartments is also increasing. Considering over 2.2 million Australians live in apartments, many are wondering what the rules are regarding their eligibility to keep their special furry (or scaly) friend.

If you live in an apartment complex or townhouse, in almost all cases, your residence will be governed by a strata title scheme. Strata title schemes are operated by an owners corporation comprised of the owners of each lot title. The owners corporation is responsible for making by-laws, to which strata lot owners must comply, and act as the managing body responsible for maintenance and repair of the common property of the building. While the main function of owners corporations is to regulate the common property, they are also granted a wide range of powers regarding the use of lot property. This means the vote of the owners corporation determines what you can do in your own apartment.

Summary of Recent Decisions

Two recent appeal decisions handed down by NCAT Appeal Panel in Roden and Cooper, held that strata by-laws prohibiting pet ownership are valid. The decisions, made in accordance with the Strata Schemes Management Act 2015 (NSW) (SSMA), allow blanket provisions prohibiting the keeping of animals in lot property to be enforceable. These decisions are devastating news for pet owners everywhere as both decisions overturned NCAT findings that by-laws restricting pet ownership were invalid by virtue of section 139 of the SSMA.

Strata Title and the Statutory Framework

Section 136 of the SSMA permits by-laws to be made in relation to "control, use or enjoyment of the lots or the common property and lots of a strata scheme". However, a by-law has no force and effect to the extent it is inconsistent with the SSMA or any other Act or law. Unfortunately, there is no provision in the SSMA that expressly makes impermissible a by-law which prohibits the keeping of animals on lot or common property. It is this broad power conferred by section 136 which permits the owners corporation to make by-laws prohibiting pet ownership.

Section 157 of the SSMA allows an owner or occupier (with the consent of the owner) of a lot in a strata scheme to apply for an order declaring the applicant may keep an animal on the lot or common property. Circumstances where an order can be made are restricted to cases where the by-laws permit the keeping of an animal with the owners corporation approval, i.e. the tribunal will not make an order under section 157 without a by-law allowing the keeping of animals on the strata scheme.

Section 138 of the SSMA provides that regulations may prescribe model by-laws which can be adopted as the by-laws for a strata scheme. As with previous legislation, the SSMA does not mandate the adoption of such model by-laws; however, adoption of model by-laws is common.

Section 139(5) of the SSMA provides that a "by-law has no force or effect to the extent that it purports to prohibit or restrict the keeping on a lot of an assistance animal (as referred to in section 9 of the Disability Discrimination Act, 1992 of the Commonwealth)".

So, am I allowed to keep a pet in my apartment?

The answer to this question will depend on whether your strata scheme has adopted the model by-laws or alternatively, passed a by-law specifically dealing with pet-ownership.

The model by-laws provide two options when it comes to the keeping of animals. Option A provides that an owner may keep an animal on the lot, provided that 14 days notice is given to owners corporation. Option B provides that an animal may be kept, subject to the owners corporation granting approval. In this case, owners approval cannot be unreasonably withheld. It is important to note that Option A is the default position if Option B has not been elected upon registration of your strata scheme.

The recent decisions of the NSW Civil and Administrative Tribunal Appeals Panel hold that if your strata scheme has by-laws in place prohibiting pet ownership then unfortunately these by-laws are likely effective. While earlier decisions had previously held that such by-laws were "harsh, unconscionable or oppressive", the appeal judgements clarify that this determination is to be made with consideration to the circumstances of the particular strata scheme, rather than to the views of the wider community.

Considerations of the strata scheme will likely differ based on the scheme's history, its physical characteristics and the attitudes of its lot owners. The decisions have the effect that where a strata scheme has considered and passed a by-law prohibiting pet ownership, such a prohibition is not in and of itself unduly harsh or oppressive and more extensive factors need to be considered in assessing the nature of the by-law (for example, if it affected some owners and not others in an unfair manner). The NSW Civil and Administrative Tribunal has upheld the basic principle that an owners corporation should be free to govern its own affairs in accordance with the democratic decisions of its owners.

When considering purchasing an apartment, townhouse, villa or some other strata title property, you should remember you are purchasing into a community living lifestyle, which is often governed by rules that are not usually expected in the broader community. Ask your conveyancer to review the by-laws of any proposed purchase in a strata scheme and carefully consider whether you would be willing to live by them, as ultimately, you will need to.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.