Joel White

In order to determine whether animals can be banned by a strata company we need to firstly determine what the Strata Titles Act 1985 (Act) says in relation to this. Secondly, to look at what the New South Wales Court of Appeal has said. Thirdly, to look at what the position of the Tribunal and Courts is here in Western Australia.

Position under the Act

The Act does not create a specific restriction for the keeping of animals. It is, however, important to note the following:

1. The Act prohibits a by-law which restricts the keeping of an assistance animal.
2. The Act allows the Tribunal to make an order to allow or prohibit the keeping of an animal.
3. The Act contains a conduct by-law (which may not necessarily apply to every strata scheme) which provides that an owner or occupier of a lot must not keep animals on the lot after notice from the council.

By-laws

As there is no specific restriction in the Act, then any restriction on animals must be dealt with under the by-laws of a scheme. A strata company’s power to make a by-law is not unrestricted and the Act provides certain situations when a by-law will be invalid. These include situations where:

1. There is no power to make the by-law.
2. The by-law is unfairly prejudicial or unfairly discriminatory against 1 or more owners of the lot when having regard to the interests of all the owners.
3. The by-law is oppressive or unreasonable.

As a general proposition, there is no power to make a by-law when the by-law does not have a rational connection with the duties of the strata company. Those duties are contained within section 91 of the Act and includes a duty to “control and manage the common property for the benefit of all the owners of the lot”.

Whether or not a by-law is unfairly prejudicial, unfairly discriminatory, oppressive or unreasonable is a question of fact to be determined by a case-by-case basis and at this point, it is appropriate to look at what the New South Wales Court of Appeal decided in relation to a similar issue.

New South Wales Decision

In the case of Cooper v The Owners—Strata Plan No 58068 [2020], the Court ordered that a by-law containing a blanket prohibition on the keeping of animals is invalid. It undertook an analysis of the legislation and previous cases but the Court appears to have strong regard to the following:

1. A lot owner in a strata scheme is entitled to the use and enjoyment of his or her property along with those rights ordinarily afforded to homeowners, such as pet ownership.
2. The phrase “harsh, unconscionable or oppressive” is not to be given any strict meaning but instead should be interpreted in accordance with contemporary community standards.
3. It is irrelevant to consider whether the majority are in favour of a by-law in determining whether it is invalid.
4. A by-law is only valid when exercised for proper purposes.

In Cooper, it was clear the Court thought that a by-law that restricts the keeping of any animal fell outside of the power to make a by-law as it did not have a rational connection with the owner’s corporation’s obligations, and it fell outside of contemporary community standards.

In particular, the Court placed some emphasis on this submission from the pet-owning party:

Thus, it is difficult, if not impossible, to see how the keeping of a fish in a secure aquarium in one lot could in any way affect the use and enjoyment of other lots or common property by other owners”

The Position in Western Australia

A recent decision in Western Australia has differed from that of the decision in Cooper but it is important to note the Western Australian decision is the result of some legislative and factual differences.  

In Steele v The Owners of Cocos Beach Bungalows Survey Strata Plan [2021] WASAT 101, the Tribunal stated that:

1. It did not necessarily accept the proposition that pet ownership was a right ordinarily afforded as an owner of property but in the present case, it was irrelevant given that the scheme in focus was not a residential scheme.
2. As the strata scheme was for holiday accommodation, there is a rational connection between the by-law banning pets and the duty of the strata company.
3. It preferred to give an ordinary meaning to the various words “unfairly prejudicial, unfairly discriminatory, oppressive or unreasonable” instead of a meaning derived from contemporary community standards.

It appears the issue as to whether by-laws can prohibit pets in residential accommodation is yet to be settled in Western Australia, particularly since Steele relied heavily on the fact that it was holiday accommodation. So, there remains hope for Western Australian pet owners (and dogs or cats alike)!

Nonetheless, it is still important for lot owners to understand that there may be other by-laws that need to be complied with such as a restriction on excessive noise and restrictions on animals defecating on or damaging common property. If this occurs, the Tribunal has the clear power to make orders to remove an animal.

If you have any issues regarding the ownership of pets in strata title, please contact our team who can assist.

A strata scheme generally consists of both lot property and common property. This article will look at what each of these are and what rights and obligations exist in relation to them. There are many ways in which common property rights can be affected but this article will look specifically at exclusive use by-laws.

Who owns and is responsible for what?

Lot property

Lot property is the part of the property comprised within a lot that is owned exclusively by a proprietor or proprietors. A lot is generally defined by its vertical and horizontal boundaries (i.e., its floor, ceiling, and walls) determined by reference to a scheme plan.

A scheme plan is a document lodged upon registration of a strata titles scheme that marks out the boundaries of each lot, including any car spaces, storage areas and other areas owned by the relevant lot.

Though it can be amended by the type of scheme plan and the notations on it, the general position is that the lot property commences from:

1. the inner surface of the external boundaries;
2. the upper surface of the floor; and
3. the undersurface of the ceiling.

As a general rule, this means that everything inside the lot belongs to the relevant proprietor, including light fittings, light switches, power points, blinds, curtains, internal walls (i.e., walls not shown on the strata plan), shower and bath fittings, cupboards, and applications.

Additionally, utility conduits (such as electrical wiring and water pipes) for the exclusive use of one lot will form part of the lot.

The lot owner is generally responsible for the repair and maintenance of the lot property.  

Common property

The common property consists of all the property that is not comprised within a lot and is owned by all the lot owners in proportion to their unit entitlements. Upon registration of a strata scheme, it will be given an aggregate of unit entitlements that will be apportioned on, generally speaking, the value of each lot. This means that each lot will have an allocated amount of unit entitlements that go towards:

1. the liability it has to contribute towards the strata company’s costs (such as repair and maintenance);
2. in some cases, the lot owner’s voting rights; and
3. the interest it ultimately has in the common property.

The interest a lot owner has in the common property, however, is indivisible which effectively only grants them a right to the use and enjoyment of the common property, subject to any by-laws and other lawful restrictions.

The common property will generally consist of common spaces, driveways, structural walls, original flooring, tiles, and a waterproofing membrane under the tiles, along with shared utility conduits such as water pipes and electrical wiring.

The strata company is responsible for the repair and maintenance of the common property.

By-laws

In Western Australia, there are, broadly speaking, two types of by-laws.

The first is conduct by-laws, which deal with the conduct of occupiers and other people in the strata scheme and the management, control, use, or enjoyment of a lot or common property in the strata scheme.

The second is governance by-laws, which deal with the governance of the scheme and the exclusive use of the common property.

For example, a conduct by-law may prevent smoking on common property, while a governance by-law may detail the process for electing members of the council of owners.

For the purposes of this article, exclusive use by-laws (which are types of governance by-laws) are the most relevant. Exclusive use by-laws provide a lot owner or owners (and, by extension, the occupiers from time to time) exclusive use or special privileges over common property and the terms on which that use is to occur.

Sometimes, the special privileges or exclusive use conferred by the by-law can be obvious, such as the use of a storage area designated as common property. What is less obvious is that these by-laws are extremely important for any work which affects common property. This can include work such as:

1. the installation of air-conditioning units affixed to common property (i.e. external walls or flooring);
2. the installation of an aerial antenna affixed to the roof;
3. the removal of a structural wall; and
4. the installation of flooring.

It is extremely important to note that, generally, lot property will commence from the inner surface of external boundaries, the upper surface of the floor, and the undersurface of the ceiling.

Most work undertaken will affect common property in some way, including the potential for damage to arise from the removal of any works such as affixing underlay to the original floor.

An exclusive use by-law protects both the strata company and the lot owner because:

1. it allows a lot owner to prove that he or she was authorised to undertake the work and as the by-law is registered with Landgate, this can be proven by a subsequent owner;
2. if the work is shown to be authorised, the strata company is not able to compel the owner to remove the work undertaken or to remove the work itself; and
3. the by-law will specify any terms the lot owner and the strata company agree to, such as who has the repair and maintenance, the obligations of the work, and what happens if damage arises as a result of that work.

It is also important to understand how these by-laws are prepared, voted upon and registered.

If you are a lot owner thinking about undertaking work in your lot or a strata company wanting advice on work proposed by a lot owner, we would be more than happy to assist with any queries.

With the rising number of apartment blocks in Western Australia, strata-titled accommodation is becoming an increasingly popular form of ownership. Unfortunately, the complexity of strata title and the varying interests of lot owners can result in disputes over a variety of matters.

The principal source of legislation that governs how strata companies operate and how issues are resolved is the Strata Titles Act 1985 (Strata Act). Most commonly, if issues cannot be resolved by agreement, they will be referred to the State Administrative Tribunal (Tribunal).

The first part of this article will look briefly at what a strata company is and who the relevant stakeholders are. The second part of this article will deal with the type of disputes usually referred to by the Tribunal. The third part of this article will look at the general procedures of the Tribunal in dealing with disputes of these types.

What is a Strata Company?

Pursuant to section 14 of the Strata Act, a strata company comes into existence upon the registration of a strata titles scheme. The strata company is a separate legal entity similar to other companies that exist in Australia and can, subject to restrictions and obligations in the Strata Act, contract directly with third parties, borrow money, sue, and be sued in its own name.

As a strata company is not a person, it needs people to make decisions on its behalf. This can be:

1. The council which is made up of lot owners elected at a general meeting of the strata company who can perform certain functions of the strata company and are somewhat similar to the board of directors of a company.
2. The lot owners being the holder of each lot in the strata scheme from time to time and are somewhat similar to the shareholders of a company. Lot owners can also make decisions on behalf of a strata company via approving a resolution of the strata company. Lot owners also own a share of the common property.
3. The strata managing agent who is authorised to perform certain functions under the Strata Act and who holds delegated authority from the strata council or lot owners to make certain decisions on behalf of the strata company.

Type of Strata Disputes

The Strata Act specifies a range of common issues which can be resolved by the Tribunal. These are detailed in the table below:

What is the Tribunal?

The Tribunal is created by the State Administrative Tribunal Act 2004 (SAT Act) and largely obtains its jurisdiction from enabling acts which in the case of strata title disputes is the Strata Act. Pursuant to section 9 of the SAT Act, the Tribunal’s objectives are:

1. Achieving the resolution of questions, complaints or disputes fairly and according to the substantial merits of the case.
2. Acting as speedily and with as little formality and technicality as is practicable, and to minimise the costs to the parties.

Pursuant to section 32 of the SAT Act, the Tribunal is generally not bound by the rules of evidence or procedures of the court.

Generally speaking, pursuant to section 87 of the SAT Act, the Tribunal is a no-cost jurisdiction which means that it is expected that each party will bear their own costs. Further, pursuant to section 39 of the SAT Act, the parties are not entitled to be legally represented unless the Tribunal agrees to a party or parties being represented.

Accordingly, the Tribunal attempts to create a more accessible and informal environment for the resolution of the disputes.

Even so, it is still extremely important that any potential applicant or respondent ensures they are aware of their rights and obligations and ensures they advance or defend their case as best as possible.

If you need any assistance with any kind of strata dispute, please contact us to talk with our team.