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Every dog has its day - Tribunal rules on interpretation of 'harsh and oppressive' by-laws concerning a pet ownership by-law

25 October 2018

#Property & Real Estate

Elly Ashley

Published by Elly Ashley, Yunsi Feng

Every dog has its day - Tribunal rules on interpretation of 'harsh and oppressive' by-laws concerning a pet ownership by-law

The NSW Civil and Administrative Tribunal recently handed down a decision in Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19 (Yardy Case) concerning a by-law which sought to entirely ban pet ownership within the strata scheme. The decision serves as an important reminder to owners corporations, owners and occupiers of the requirements set out under section 139(1) of the Strata Schemes Management Act 2015 (SSMA) which states that a by-law cannot be ‘harsh, unconscionable and oppressive’.

The Yardy Case concerned a small Maltese cross terrier named Baxter who was owned by a lot owner and his wife. Baxter’s owners purchased the apartment after being satisfied that the by-laws for the strata scheme allowed the keeping of animals with written approval of the owners corporation. On applying for approval, the lot owner was informed there had in fact been an amendment to the by-laws which stated ‘an owner or occupier of a lot must not keep any animal on the lot or the common property’ (by-law 16).

After failing to pass a motion to amend by-law 16 at a meeting of the owners corporation, Baxter’s owners applied to the Tribunal under section 150 of the SSMA to declare by-law 16 invalid on grounds it was in breach of section 139(1) of the Act.

Section 139(1) of the SSMA provided as follows: 

  • 139 Restrictions on by-laws
  • (1) By-law cannot be unjust 
  • A by-law must not be harsh, unconscionable or oppressive.
    Note: Any such by-law may be invalidated by the Tribunal (see section 150).

In its assessment, the Tribunal considered:

  • the legislative intention of section 139(1) of the SSMA to prevent unreasonable restriction of pet ownership
  • expert evidence on the benefits of pet ownership and its acceptance in contemporary community standards
  • the meaning of the phrase ‘harsh, unconscionable and oppressive’.

The Tribunal concluded that there is contemporary acceptance that, within strata units, lot owners should have the right to keep pets provided there is a mechanism for assessment and regulation by the owners corporation.

In its examination of the operation of section 139(1) of the SSMA, the Tribunal observed by-law 16 was ‘harsh, unconscionable and oppressive’ because it:

  • did not provide for a mechanism for the owners corporation to consider the individual circumstances of each lot owner or pet or grant an exception to the blanket prohibition
  • unreasonably and unnecessarily precluded the exercise of ‘a right of habitation which the Tribunal considers is part of contemporary community standards associated with the rights of owners and occupiers of lots in strata schemes’
  • did not permit a balanced consideration of multiple sides to the issue and only operated in the interests of lot owners who opposed pet ownership.

The Tribunal accordingly ordered for by-law 16 to be revoked.

The Yardy Case highlights the importance for owners corporations to consider the interests and needs of all lot owners or occupiers when attempting to regulate their behaviour through the use of by-laws. Owners corporations should be wary of imposing blanket prohibitions on any lot owner behaviour which a lot owner may reasonably expect to enjoy without granting an opportunity for review and discussion.

Given that the Yardy Case is one of the first cases in which the Tribunal was asked to exercise its powers under section 150 of the SSMA, the reasoning in which the Tribunal assessed the validity of the pet prohibition by-law is likely to be adopted in future proceedings.

Authors: Elly Ashley & Yunsi Feng

Contacts:

Sydney
Vanya Lozzi, Partner
T: +61 2 8083 0462
E: vanya.lozzi@holdingredlich.com

Elly Ashley, Senior Associate
T: +61 2 8083 0441
E: elly.ashley@holdingredlich.com

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Elly Ashley

Published by Elly Ashley, Yunsi Feng

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