In the recent cases of Yardy v Owners Corporation SP 57237  NSWCATCD 19 (decided on 19 February 2018), McCormick & McGinness v The Owners – Strata Plan No. 2371 (decided on 9 October 2018) and most recently a matter relating to The Elan building in Kings Cross (decided on 20 September 2019), the NSW Civil and Administrative Tribunal (the Tribunal) held that a no pets provision in the by-laws would be invalid on the basis of section 139(1) of the Strata Schemes Management Act 2015 (the Act).
Section 139(1) of the Act provides that a by-law must not be harsh, unconscionable or oppressive.
In Yardy, the Tribunal held that the no pets by-law:
1. was harsh as it was a complete prohibition with no exceptions and made no provisions for special circumstances to be considered;
2. was unconscionable because it unreasonably and unnecessarily precludes the exercise of a right of habitation which is part of contemporary community standards and provides no opportunity for consideration to be given to the rights and needs of individual lot owners; and
3. was unreasonably excessive and oppressive as it does not involve or permit a balanced consideration of the interests and needs of all lot owners or occupiers. The by-law provided no process by which a lot owner could be able to keep an animal as a pet and operated only in the interests of those opposed to the keeping of animals as pets.
A critical consideration in the Yardy proceedings was the evidence of the benefit of pet ownership to humans as a general rule, and how the recognition of this phenomenon has formed part of contemporary community standards. The Tribunal further stated that keeping a pet may also be a part of a lot owner’s basic right of habitation.
The consequences of these decisions are that:
1. a by-law containing an outright prohibition is likely to be held to be harsh, unconscionable and oppressive and may be invalidated by the Tribunal; and
2. contemporary community standards need to be considered.
The effect of the above is that unless there is something special about a scheme that would justify a blanket no pets by-law then a by-law prohibiting the keeping of a pet is likely to be held invalid if challenged.
An appeal has been apparently been lodged in respect of The Elan building decision and it remains to be seen whether the decision made at first instance will be upheld.
We note that the decisions of McCormick & McGinness and The Elan Building have not been published.
Written By Jasmin Singh and Allison Benson