'A dog's breakfast': NSW strata by-laws need to catch up to the 21st century

If you will excuse the pun, strata law in relation to pets is a dog’s breakfast. An appeal is pending on whether by-laws that impose blanket pet bans are "harsh, unconscionable or oppressive". Individual NSW Civil and Administrative Tribunal members have held they are, while the tribunal's appeal panel thinks not. Since 2015, strata legislation has made it impermissible to oppress your neighbours. Before that, it was apparently OK.

This should indicate problems with strata law. Governments have never understood that private citizens cannot be given unlimited power to run their own communities. Some level of autonomy is necessary, but common sense and a basic understanding of government, tell us that humans can make poor decisions that harm their fellow man. The fact that a majority agreed to a rule, does not make a rule good.

Pet by-laws are well overdue for an update.Credit: James Alcock

Strata schemes have repeatedly proved this with their pet by-laws. Some run for pages and would be laughable if they did not cause so much distress, wasted time and money. This could be avoided with a simple legislative rule that prohibits schemes banning pets, forcing schemes to focus on the power tribunals have always had to remove problem animals. When trying to solve a problem, it makes sense to focus on the actual problem.

Pet bans are a hangover from when Australians lived on quarter-acre blocks. This led to a belief that "people should not keep dogs in apartments". This no longer makes sense. Most housing lots are now small; dogs do not have space, and their barking can disturb neighbours. Neither leads people to believe they should be able to ban their neighbour’s dog. If a dog is being kept cruelly, you contact the RSPCA; if it disturbs you, you contact the council. If the dog is well-cared for and makes minimal noise, you mind your own business. Strata schemes should be no different. If you don’t want to share a lift with a dog, don’t live on collectively owned land.

Twenty-five years ago, when deciding the fate of Fluffin, Ruffin and Muffin, three Californian condominium cats, Justice Arabian said, "In any community, we do not exist in a vacuum. There are many annoyances which we tolerate because not to do so would be repressive and place the freedom of others at risk." Justice Arabian was in the court minority and the kitties were evicted, but in response to community sentiment, the California legislature passed a law prohibiting condos banning pets. A similar amendment was introduced last week to the NSW upper house. It is only a matter of time before it or a like reform is made.

Cathy Sherry is an associate professor at UNSW Law and the author of Strata Title Property Rights.