Dealing with a pet allergy in an apartment building is tough, particularly when animals live there too. Many love having fluffy pals around, but allergies can turn these lovable creatures into a real health problem. For folks with allergies, having pets in the building can really mess with their well-being and daily life.

This raises an important question: can pet allergies experienced by some neighbours justify a blanket ban on pets to be kept in a strata scheme? In this article, we’ll explore the complex issues surrounding pet allergies in strata living, examining strata by-laws, pet owners’ rights, legal precedents, strata legislation and potential solutions to balance the needs of all residents.

Understanding Strata By-laws and Pet Ownership in NSW

Strata by-laws play a crucial role in regulating various aspects of living in a strata scheme, including pet ownership. Recent legal changes have significantly impacted how by-laws can restrict or allow residents to keep a pet in strata properties across New South Wales.

The Role of By-laws in Strata Schemes

By-laws are a set of rules that govern the behaviour and activities of residents within a strata scheme. They cover a wide range of issues, from parking and noise to the use of common property and pet ownership. All owners, occupiers, and visitors must comply with the by-laws, which are typically created by the owners corporation and can be amended through a special resolution at a general meeting.

However, recent legal reforms have placed limitations on the extent to which by-laws can restrict pet ownership. The NSW Court of Appeal decision in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 has set a precedent that deems blanket pet bans in strata schemes as harsh, unconscionable, or oppressive.

Impact of the NSW Court of Appeal Decision

In October 2020, the NSW Court of Appeal handed down a landmark decision in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250. The court ruled that a blanket ban on pets in a strata scheme was invalid, as it was considered harsh, unconscionable, or oppressive under section 139(1) of the Strata Schemes Management Act 2015 (NSW).

The decision emphasised that by-laws should not restrict the lawful use of a lot, unless the restriction is justified by the impact on other lot owners and occupiers. The court held that a blanket pet ban is an unreasonable restriction on lot owners’ property rights, as it fails to consider the individual circumstances of each pet and its potential impact on the strata community.

This ruling has far-reaching implications for strata schemes across NSW. Owners corporations must now review their existing pet by-laws and ensure they do not impose blanket prohibitions. Instead, by-laws should provide a fair and reasonable framework for assessing pet applications on a case-by-case basis, considering factors such as the animal’s size, breed, and potential impact on other residents and common property.

Learn more about pet ownership in strata properties in our article here.

Rights of Pet Owners in Strata

Recent changes to NSW strata laws have strengthened the rights of pet owners in strata schemes. The NSW Court of Appeal ruled that blanket bans on pets are harsh, unconscionable and oppressive. This means owners corporations cannot unreasonably prohibit residents from keeping pets in their lots.

Legal Protections for Pet Owners

The Strata Schemes Management Act 2015 now includes Section 137B, which states that keeping an animal in a lot is deemed reasonable unless it unreasonably interferes with another occupant’s use and enjoyment of their lot or common property. Interference is considered unreasonable only in specific circumstances, such as:

• The animal makes persistent noise that disturbs other occupants
• The animal repeatedly runs at or chases residents or their pets
• The animal attacks or menaces others
• The animal repeatedly damages common property
• The animal causes health risks through infection or infestation
• The animal creates persistent offensive odours

Pet owners must still comply with reasonable conditions set by the owners corporation regarding how pets are kept and managed within the scheme. These conditions may include:

• Keeping pets under control on common property
• Cleaning up after pets promptly
• Ensuring pets do not cause nuisance to other residents
• Maintaining pets’ health and hygiene standards

The law recognises pet ownership as a normal part of residential living while balancing the rights of all residents. Owners corporations must assess each pet application on its individual merits rather than applying blanket restrictions.

The Cascade Gardens Apartments [2018] Case

The Cascade Gardens Apartments case in 2018 serves as an important precedent in pet-related disputes in strata schemes. The case involved a lot owner, Kelly Shaw, who applied to the body corporate for permission to keep her small dog, Daisy, in her apartment.

Case Overview and Outcome

In June 2017, Ms. Shaw wrote to the body corporate committee seeking approval to keep her pug mix, Daisy, in her lot. She proposed conditions such as not allowing the dog on common property and carrying it through hallways and entrances. Ms. Shaw provided details about the dog’s friendly nature, lack of barking, and previous living arrangements, along with a photograph and references.

The committee declined the request, stating that the complex was not suitable for animals. Ms. Shaw challenged this decision, arguing that the pet by-law was unreasonable and the committee’s decision lacked valid reasons.

The adjudicator considered several factors in the case, including:

• The legal role and responsibilities of the committee and body corporate
• Arguments for and against approving this specific dog
• Potential consequences for the applicant and the scheme
• The majority view of lot owners
• The risk of the dog adversely impacting common property or other occupants’ rights
• Whether objections could be addressed through conditions

Ultimately, the adjudicator dismissed Ms. Shaw’s application. The key factor was evidence that the scheme’s caretaker, who frequently accessed all common areas, had a heart condition and asthma that could potentially be exacerbated by dog dander.

While acknowledging that dander could be brought in by other residents and visitors, and the severity of the caretaker’s reaction was not detailed, the adjudicator found it was not unreasonable for the committee to refuse permission based on the potential health impact, in the absence of evidence to the contrary.

However, the adjudicator noted there may be potential for conditions to be developed to minimise the transmission of allergens and the risk of adverse impacts. The onus would be on the applicant to demonstrate practical conditions that could address the situation.

The Cascade Gardens Apartments case highlights the importance of strata committees considering pet applications on their individual merits, rather than imposing blanket bans. It also demonstrates that the health concerns of residents can provide a reasonable basis for refusing a pet, but committees should be open to considering conditions that may mitigate any risks.

Can Your Strata Ban Pets Because of Allergies?

While the recent NSW Court of Appeal decision has invalidated blanket pet bans in strata schemes, the issue of pet allergies remains a concern for some residents. This section explores whether allergies can justify restrictions on pets and how strata schemes can balance the rights of pet owners with the health concerns of allergic residents.

Addressing Allergies in Strata

Strata schemes must find ways to manage allergy concerns without resorting to blanket pet bans. Some possible accommodations and conditions include:

• Requiring pet owners to groom their animals regularly to minimise dander
• Mandating that pets be carried or kept in carriers while on common property to reduce the spread of allergens
• Increasing cleaning frequency of common areas to remove pet dander and hair
• Designating certain areas as pet-free zones for the comfort of allergic residents
• Encouraging open communication between pet owners and allergic residents to find mutually agreeable solutions

However, it’s important to note that the mere presence of an allergic resident does not automatically justify refusing a pet application. The strata scheme must assess each situation individually and determine if reasonable accommodations can be made to allow the pet while managing allergy risks.

If an allergic resident provides medical documentation of a severe pet allergy that cannot be adequately managed through accommodations, this may provide grounds for refusing a specific pet application. However, this would need to be evaluated on a case-by-case basis, considering factors such as the severity of the allergy, the specific animal in question, and the feasibility of proposed accommodations.

The Role of the Owners Corporation and Strata Managers

The owners corporation and strata managers play a vital role in enforcing by-laws and managing pet-related issues in strata schemes. As the governing body, the owners corporation is responsible for making decisions that impact all lot owners and occupants, including those related to pets.

Strata managers, appointed by the owners corporation, handle the day-to-day management of the scheme. They are often the first point of contact for residents seeking pet approval or reporting pet-related problems. Strata managers advise the owners corporation on pet by-laws, assist in the pet application process, and help resolve disputes that may arise.

When a pet application is submitted, the owners corporation must consider it fairly and make a decision based on the merits of the application. They cannot unreasonably refuse permission for a pet. If an application is denied, the owners corporation must provide valid reasons for the refusal.

If a pet is causing a nuisance or breaching by-laws, the owners corporation can issue a notice to comply to the pet owner. This notice outlines the issue and gives the owner a timeframe to rectify the problem. If the issue persists, the owners corporation may escalate the matter to the NSW Civil and Administrative Tribunal (NCAT) for an order to remove the animal.

Enforcing By-laws and Resolving Disputes

Enforcing pet by-laws and resolving related disputes is a key responsibility of the owners corporation and strata managers. When a complaint is made about a pet breaching by-laws, the first step is usually to attempt to resolve the issue through informal discussions with the pet owner.

If this approach is unsuccessful, the owners corporation can issue a notice to comply with the by-laws. This formal notice specifies the alleged breach and gives the owner a reasonable timeframe to address the issue. Failure to comply with the notice can lead to the owners corporation applying to NCAT for a penalty order.

In cases where a pet is causing a nuisance or hazard, or unreasonably interfering with the use and enjoyment of another lot or common property, the owners corporation can apply directly to NCAT for an order to remove the animal. NCAT will consider the evidence and make a decision based on the circumstances of the case.

Strata managers often play a mediating role in pet-related disputes, working to find a resolution that satisfies all parties involved. They can provide guidance on the proper procedures for enforcing by-laws and assist the owners corporation in gathering evidence to support their case if the matter proceeds to NCAT.

Conclusion

Pet allergies in strata schemes require careful consideration of both pet owners’ rights and the health concerns of other residents. Recent legal changes have established that blanket pet bans are no longer valid, requiring a balanced approach that protects all residents’ interests.

The focus has shifted toward finding practical solutions that allow pet ownership while addressing legitimate health concerns through reasonable conditions and accommodations. This approach better serves the diverse needs of strata communities while upholding the legal principles established by recent court decisions.

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