What are the general rules about pets?
If a strata property does not have specific by-laws, an owner is allowed to have a pet, unless:
- valid notice has been given to the owner by the council that the owner must not keep the pet, in accordance with by-law 12(c) of the conduct by-laws in the Stata Titles Act; or
- the pet is unreasonably interfering with use of the common property by other owners, is causing a nuisance to other owners or is causing damage to the common property, such as continual barking or damage to lawn caused by a pet.
Can a by-law prohibit pets?
The regulation of pets in strata properties primarily comes down to the by-laws and pet policies established by the strata council. These bylaws can vary widely from one property to another, and they can cover a range of topics, including:
- Pet types: Some strata properties permit only certain types of pets, such as small dogs or cats, while others may have more lenient policies or restrictions on exotic animals.
- Size and number limits: Strata by-laws often set limits on the size and number of pets residents can have within their units.
- Noise and disturbance control: Regulations may be in place to address issues related to excessive noise or disturbances caused by pets.
- Common area access: Pet owners may be subject to rules regarding where their pets are allowed within common areas of the property.
A by-law cannot prohibit or restrict the keeping on a lot of an animal that is used as an assistance animal by a person with a disability.
For all other animals, the answer to the question about whether a by-law may prohibit, or restrict, pets depends on the circumstances (such as the nature of the strata property) and the wording of the by-law.
In a recent case in New South Wales, a by-law containing a prohibition on keeping animals was found to be invalid (Cooper v The Owners - Strata Plan No 58068 [2020] NSWCA 250) because such the by-law in question prohibited “an ordinary incident of the ownership of real property, namely, keeping a pet animal” and provided “no material benefit to other occupiers”.
In that case, it was particularly relevant that the by-law had a ‘blanket’ operation, without any qualification or exception for animals that would create no hazard, nuisance or material annoyance to others.
On the other hand, a recent Western Australian decision decided that a by-law prohibiting pets was not invalid, in the context of holiday accommodation (Steele and The Owners of Cocos Beach Bungalows [2021] WASAT 101). In that case, it was relevant that the strata property was not a residential complex, but was designated for holiday accommodation. The result was that the by-law did not prohibit an owner from having a pet, but operated to prohibit owners from bringing a pet with them on holiday.
It is also possible that the by-law will be invalid if it is inconsistent with the new WA tenancy laws that allow pets, but this will depend on the wording of the law (once it is passed). This is because section 46(b) and 46(f) of the Strata Titles Act 1985 (WA) provide that by-laws are invalid to the extent that they are inconsistent with any written law (in this case, the Residential Tenancies Act), and to the extent that they restrict the lease of a lot.
If you have concerns about a pet by-law, or are considering passing a by-law about pets, we recommend that you contact one of the lawyers at Douglas Cheveralls Lawyers for advice.