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:
- The Act prohibits a by-law which restricts the keeping of an assistance animal.
- The Act allows the Tribunal to make an order to allow or prohibit the keeping of an animal.
- 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.
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:
- There is no power to make the by-law.
- 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.
- 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 , 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:
- 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.
- 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.
- It is irrelevant to consider whether the majority are in favour of a by-law in determining whether it is invalid.
- 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  WASAT 101, the Tribunal stated that:
- 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.
- 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.
- 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.