Maybe the Irwin’s were onto something when they got involved with Crocodiles….
They don’t move around much or leave their home (at Australia Zoo), sleep a fair bit, just lay in a pool, don’t bark, don’t wander around depositing nasty surprises everywhere, don’t attack people on common property, don’t shed hair that may give allergies and in a weird way are quite cute. Admittedly they are large and do have a few unsavoury habits and are dangerous if approached (so don’t approach them) but otherwise a perfect pet for strata!
OK, a silly thought but really, where are we headed when it comes to pets? Whenever we think of pets in strata we hear of the tales of barking dogs, cats roaming the common property at night, allergies galore and then there are those that are scared of or don’t like animals and those that love them. What we are forgetting in all of this is the concept of strata. It’s a mini democracy, a fourth tier of Governance, or is it?
There have been more legal cases, disputes and types and styles of by-laws drafted than anything else in strata and in all of my years in strata I think it has been the most topical issue that I have faced. Even in my own office, when a case comes in, the arguments start….. a bunch of lawyers – lots of fun.
Owners corporations and bodies corporate operate best when there is fairness and harmony and where, if someone steps out of line, there are rules and regulations that attempt to maintain that fairness and harmony and bring owners and occupiers back to parity. However, when we start looking at pets in strata a little bit of this is lost. The recent amendments to the NSW legislation are a good example of how the pendulum is swinging. When the NSW legislation first came out all those years ago an owners corporation could make by-laws that allowed animals, allowed them with restrictions or prohibited them.
The most recent legislative changes in NSW (and don’t think you are immune in the other States and Territories) basically turns the table on owners corporations. The onus of proving that an animal shouldn’t be allowed in or be removed (if it is already there) is now on the owners corporation. At its extreme, if the owners corporation has a by-law and I am an owner and I don’t like it I can just claim its unenforceable and bring in my lovable pet. The owners corporation then has to prove that the animal doesn’t comply with the by-law and that it should be removed.
An owners corporation can make conditions on keeping an animal, but these are all reviewable by the Tribunal as to whether they are harsh, oppressive or unconscionable, so again the owners corporation has to defend its position, not the other way around. And then, even if you can get over those hurdles, an occupant can claim that their application was unreasonably refused….. so the owners corporation needs to prove that it acted reasonably, a hard task when photos of fluffy with their big cute eyes looking up at you are submitted to the Tribunal.
Now I am not against animals. In fact, I grew up with them and still mind our children’s dog when they are away or unwell (and yes I live in strata). My concern is that now the art of democracy and that the majority rule has been replaced with an “I want it now” and “you can’t stop me” ideology and my rights are more important than yours mentality. While some of you may disagree with me, I expect that some in the industry will agree that there are buildings where having a no or limited pets by-law is warranted and where having a totally pet friendly building is perfect for the building and its occupants. Where would Col the Croc live if we just had a communal pool? Well he might be ok but having a swim might be a few laughs – note to self – just be the second slowest…..
Why can’t there be a scheme that decides by even a higher threshold (unanimous) that it is either a pet friendly or nonpet friendly building? Why couldn’t a developer make that part of their sales pitch…. make a separate animal area for play or doing their business (something that I have seen firsthand in the USA and it works) or promote “if you have allergies or are scared of dogs here is the place for you” and have no pets?
In the same way that building construction and amenities have developed over the last 50-60 years in strata, so too has our social interaction and use of common facilities. We need to be able to manage that fairly for all and in my mind the pendulum has swung a little too far and needs to come back just a bit.
So, what do we do?
Now a lot of this article has been drafted with a little tongue in cheek, but the concept needs to be considered carefully. Owners corporations in NSW (and as I said before don’t think we are all special here, it will be coming to a place near you soon) need to review their by-laws for any inconsistencies, conditions that may go too far, consider making conditions that may apply better, or generally rethinking the entire animal concepts and how they will deal with it.
If owners corporations have a no pets by-law, this needs to be changed as soon as possible as it cannot be relied on anymore.
If owners corporations sit and wait and not do anything they risk the scenario where someone will just make the decision themselves that the by-law is unenforceable and obtain an order from the Tribunal to that effect and the owners corporation will be on the back foot.
What about Col the Croc?
Well, I think he’s fine based on some of the legal provisions in the NSW legislation:
- the animal makes a noise that persistently occurs to the degree that the noise unreasonably interferes with the peace, comfort or convenience of another occupant – nope, Col is really quiet, although sometimes during breeding season he grunts a bit (but not loud enough to be heard in another apartment).
- the animal repeatedly runs at or chases another occupant, a visitor of another occupant or an animal kept by another occupant – well only if they come into the backyard where the pool is (and he will only do it once) but otherwise he is fine and keeps to himself.
- the animal attacks or otherwise menaces another occupant, a visitor of another occupant or an animal kept by another occupant – only if he gets out but that is rare.
- the animal repeatedly causes damage to the common property or another lot – that’s fine we have a fence inside the common property fence (under a by-law).
- the animal endangers the health of another occupant through infection or infestation – no way – he’s as clean as a whistle – no fleas here.
- the animal causes a persistent offensive odour that penetrates another lot or the common property – smells a little but no worse that some people I know.
- for a cat, the owner of the animal fails to comply with Companion Animals Act 1998 orders – not a cat!!
- for a dog, the owner of the animal fails to comply with Companion Animals Act 1998 orders – not a dog!!
- I just need to get that Government permit…….. that might be a problem…….
Author: Colin Grace, Grace Lawyers