In McGregor v The Owners – Strata Plan No. 74896 [2021] NSWCATCD 1, Mr Scott McGregor and his partner, Bernadette Eichner (Applicants) sought an order under s 157 of the Strata Schemes Management Act 2015 (SSMA) to be allowed to keep their 12 year old miniature fox terrier, Jimmy, on their lot.
The Applicants purchased their lot in Strata Plan No. 74896 in February 2020. It was an Apartment lot. Strata Plan No. 74896 (also known as the Altro Building) was a strata scheme forming part of Community Association DP No. 270241, the City Quarter Complex in Camperdown.
The Community Management Statement (CMS) for the City Quarter Complex contained By-law 22.1 which provides:
If you are then owner of an Apartment, you must not keep an animal in your Apartment or in City Quarter other than:
(a) one cat;
(b) goldfish or other fish in an indoor aquarium;
(c) canaries, budgerigars or similar birds kept indoors at all times; and
(d) a guide dog or a hearing dog if you need the dog because you are visually or hearing impaired.
By-law 22.2 permitted owners or occupiers of Townhouses within the City Quarter Complex to keep, in addition to the animals identified above, “one small dog”.
The registered by-laws for SP74896 included by-law 2.3 which provided that the Community Association, Owners Corporation and the owners and occupiers of lots within the City Quarter Complex must comply with the CMS.
Prior to purchasing their lot, which was defined as an Apartment under the CMS, the Applicants received legal advice from a solicitor regarding the contract of sale. They claimed that their solicitor advised that By-law 22.1 was “confusing” and inconsistent with the model by-laws set out in the Strata Schemes Management Regulation 2016 (SSMR).
On 3 February 2020, the Applicants wrote to the Strata Manager informing the Owners Corporation of their intention to bring their little dog, Jimmy to live with them in the lot, in accordance with Schedule 3, Clause 5 of the SSMR. In addition to basic information about Jimmy such as his age, breed, vaccination status and temperament, they provided two character references: one from the next door neighbour from the previous apartment block Jimmy resided in, and the other from the strata manager for the previous Scheme Jimmy lived at.
The strata managing agent responded to the Applicants, highlighting By-law 22.1 of the CMS and confirming that Jimmy would not be permitted to stay in the building. By-law 22.1 permitted Apartment owners to keep specific animals, relevantly, Apartment lots were not permitted to keep dogs unless they were a guide or hearing dog.
The Applicants Arguments
In support of their application seeking an order under s 157 of the SSMA to keep Jimmy at their Lot, the Applicants argued that By-law 22.1 was inconsistent with the model by-laws as set out in the SSMR and community standards. They also relied on the following evidence:
- A report from a clinical psychologist attesting to the psychological benefits Jimmy provided to Mr McGegor and the ways in which Mr McGregor’s mental health had deteriorated since being denied permission to keep Jimmy at the lot;
- Statements from owners in other apartment buildings in the Community Association regarding their ownership of dogs (in contravention on By-law 22.1) and their knowledge of other dogs within their own and other apartment buildings; and
- Statements of support for permitting Jimmy to stay at the lot from other lot owners within Altro.
Although not expressly pleaded in the Application, via their submissions, the Applicants invoked s 150 of the SSMA, submitting that their application to allow Jimmy to reside in their lot should be granted on the basis that the enforcement of By-law 2.3 of registered by-laws for SP74896 was harsh, unconscionable or oppressive, since the Community Association does not enforce By-law 22.1 and does not require individual strata plans to enforce it.
The Application was dismissed.
Why the Application Failed
Section 157 of the SSMA states the following:
(1) The Tribunal may, on application by the owner or occupier (with the consent of the owner) of a lot in a strata scheme, make an order declaring that the applicant may keep an animal on the lot or common property.
(2) The Tribunal must not make the order unless it is satisfied that—
(a) the by-laws permit the keeping of an animal with the approval of the owners corporation and provide that the owners corporation cannot unreasonably withhold consent to the keeping of an animal, and
(b) the owners corporation has unreasonably withheld its approval to the keeping of the animal on the lot or common property.
Unfortunately for the Applicants, the registered by-laws for Strata Plan No. 74896 did not include a by-law which allowed the keeping of animals (including dogs) with the permission of the Owners Corporation. As such, both limbs of s 157(2) were unable to be satisfied.
The Owners Corporation merely relied on By-law 2.3, which required lot owners to comply with the CMS. Because this was all that By-law 2.3 did, the by-law was not considered by NCAT to be harsh, unconscionable or oppressive.
The Applicants’ case was fundamentally misconceived. The true mechanism preventing them from keeping Jimmy at their lot was By-law 22.1 of the CMS.
Community Associations are governed by the Community Land Management Act 2021 (CLMA). There is no equivalent provision to s 157 of the SSMA in the CLMA. Additionally, a precondition to seeking an order that a by-law forming part of the CMS be revoked on the basis that it is invalid or harsh, unconscionable or oppressive is that the application is made by a person entitled to vote at a meeting of the association.
The Applicants were owners of a lot within Strata Plan No. 74896, a subsidiary body of Community Association DP No. 270241. They were not entitled to vote at a meeting of the Community Association – only the Owners Corporation for SP74896 was entitled to do this.
The Takeaway
Strata and community title law can be complex, especially when a strata scheme is located within a community association.
If you have any concerns about the CMS or by-laws for a scheme prior to purchasing your lot, it is important to obtain legal advice from a strata specialist solicitor. In this case, such a specialist would have been able to advise the Applicants that the model by-laws in the SSMR were not applicable to the scheme and the limitations they would have faced attempting to challenge By-law 22.1.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation
Author: Ashley Howard