“No pets” by-laws declared to be harsh, unconscionable and oppressive. Each case to be considered on the facts

04/02/2020

In a decision late last year, a Senior Member of the Tribunal made orders declaring a by-law harsh, unconscionable and oppressive, and ordering the Owners Corporation to remove it from the date of registration.

The by-law excluded pets, and had its application to “Angus”, a 13-year-old miniature schnauzer that the Owners of a Lot had acquired as a pet nine years before they bought into the scheme.

Whilst evidence was given that people had observed the pet being kept, none of the evidence supported the dog causing any real disturbance or annoyance. The only evidence against Angus was that on one occasion, he had urinated on the tiled lobby lift floor, which his Owner had attempted to clean up promptly.

The un-contradicted evidence by experts was that dogs such as this one, were adaptable to all environments and bred for and ideal for apartment living.

Notwithstanding, there was a “no pets” by-law in operation for the scheme, that was sought to be inflexibly enforced.

s 139 of the Strata Schemes Management Act 2015 relevantly provides as follows:

(1)      A by-law must not be harsh, unconscionable or oppressive.

           Note. Any such by-law may be invalidated by the Tribunal (see section 150).

(3)      If an order made by the Tribunal under this Act has effect as if its terms were a by-law, that by-law is not capable of being amended or repealed except by a by-law made in accordance with a unanimous resolution of the Owners Corporation.

(5)      A by-law has no force or effect to the extent to which 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) used by an Owner or Occupier of the lot as an assistance animal or the use of an assistance animal for that purpose by a person on a lot or common property.

(6)      A by-law may require a person who keeps an assistance animal on a lot, to produce evidence to the Owners Corporation that the animal is an assistance animal as referred to in section 9 of the Disability Discrimination Act 1992 of the Commonwealth".

s. 150 of the Strata Schemes Management Act 2015 relevantly provides as follows:

"(1)     The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law … , make an order declaring a by-law to be invalid if the Tribunal considers that an Owners Corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.

(2)      The order, when recorded under section 246, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order made by a superior court).

(3)      An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order."

The by-law was originally in the following form:

“Subject to s 49(4) of the Act, an owner or occupier of a Lot must not keep or permit any animal to be on a Lot or on the Common Property”.

At an Annual General Meeting (AGM) on 4 December 2018, a replacement by-law was passed as a special resolution which was registered on 21 January 2019. It simply updated the previous by-law to the current Strata Schemes Management Act 2015 provision for the assistance dog exemption and read:

“14.1 Subject to s 139(5) of the Act, an Owner or Occupier of a Lot must not keep or permit any animal to be on a Lot or on the Common Property.”

The exemption was in conformity with Commonwealth disability anti-discrimination legislation to permit the keeping of what is now called an “assistance dog”.

However, Angus was not an assistance dog, and so did not fall within the exemption.

At that same December 2018 AGM, the Owners proposed a replacement by-law 14 as a special resolution which was defeated prior to the passage of updating the special resolution referred to above.

The proposed replacement by-law 14 defeated at the 2018 AGM read as follows:

“14.1 Subject to section 139(5) of the Act, an Owner or Occupier of a lot must not, without prior written approval of the Owners Corporation, keep any animal (except a cat, a small dog or a small caged bird, or fish kept in a secure aquarium on the lot) on the lot or the common property.

The Owners Corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property.

If an Owner or Occupier of a lot keeps an animal on the lot, the Owner or Occupier must:

(a)       “notify the Owners Corporation that the animal is being kept on the lot;

(b)       keep the animal within the lot,

(c)       supervise the animal when it is on the common property, and

(d)       take such action as may be necessary to clean all areas of the lot or the common property that are soiled by the animal.”

This defeated replacement by-law (if passed) would have protected Angus.

Prior to this decision, there had been three recent decisions dealing with "no pets" by-laws.

The Tribunal referred to the history of the changes in the legislation and regulations (Strata Schemes Management Regulations of 2005, 2010 and 2016) over the years, and in particular, to the increasing acceptance of pets in Strata Schemes as demonstrated by provisions in the model rules were able to be accepted by Strata Schemes.

The Tribunal held that, in determining whether a given by-law was "unconscionable”, this needed to be done in the context of the “text, structure and context of the legislation”, and that here “the expressed legislative preference in the model by-laws is for acceptance, with amenity protections, of any notified pet (2016 Option A), with the alternative of the Owners Corporation having to justify refusal on objective grounds (2016 Option B).”

In that context, it meant that:

“a scheme which wishes to have a blanket "no pets" by-law needs objectively to justify that choice in the context and circumstances of the scheme where, and once, that choice is challenged by a particular Owner or Owners in respect of particular types of pet and where evidence is led that gives a proper basis for that challenge…”

The Tribunal ultimately found as follows from [115]:

“On the facts objectively assessed in the present case, the Owners have demonstrated a proper basis for a case that the nature of Angus, in terms of the personality and behaviour of the type of pet that he is, makes it unpleasant or ungentle in action or effect ("harsh"), unjust or unreasonably excessive or not in accordance with what is just and reasonable ("unconscionable"), and unjustly harsh or burdensome in exercise of power ("oppressive"), simply to ban and seek to expel this type of pet (and types of pet with demonstrated similar characteristics) under a blanket prohibition, rather than rely upon the amenity and conduct by-laws to regulate custody and management under the stewardship of Owners of types of pets such as him.

The evidential onus then falls on the Owners Corporation to put forward evidence able to be objectively assessed in the context and circumstances of the particular Strata Scheme and that, when taken with the Owners' evidence, means that the Owners have not satisfied the burden of proving that the blanket prohibition by-law is harsh, unconscionable or oppressive under

s139(1).”

If you wish to challenge a by-law on the basis that it is harsh, unconscionable or oppressive in the context and circumstances of a particular Strata Scheme (whether it relates to pets or otherwise) or have any queries in relation to the keeping of a “pet” or “assistance dog” in a Strata Scheme, please contact Richard Watson Accredited Specialist Building & Construction and Senior Strata Lawyer or Shereen Da Gloria his personal assistant to discuss your concerns

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.