Even goldfish could be banned - until now
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Even goldfish could be banned - until now

Most Australians are inherently reasonable and do not presume to regulate their neighbours' private lives. One glaring exception is pets in strata schemes.

Blanket bans on pets can stop residents of strata buildings owning even the most innocuous animals.

Blanket bans on pets can stop residents of strata buildings owning even the most innocuous animals.

Photo: Kylie Pickett

Many strata schemes have created bylaws that ban all pets, irrespective of whether a pet is having any meaningful effect on others. Blanket pet bans prohibit cats who never leave the house and dogs who snore on the sofa all day, leaving the apartment once for their walk (having to share a lift with a dog is not a meaningful effect on others). Blanket pet bans even prohibit goldfish who do nothing other than swim quietly around their bowl.

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Until now. On Friday, the NSW Civil and Administrative Tribunal published a decision that a blanket pet ban in a Sydney apartment block was invalid because it breached the new prohibition on bylaws that are harsh, unconscionable or oppressive. The tribunal member accepted that, judged by contemporary community standards, a prohibition on all pets was contrary to a lot owner’s basic habitation rights. The decision recognised that attitudes to pets in apartments has changed over time in Australia and that, as more people live in apartments, more people expect to be able to keep pets in apartments.

The decision is to be lauded. But the issue goes beyond pets. The issue is that in a liberal democracy, private citizens should never be able to regulate what other people do in the privacy of their own home, with the narrow exception of behaviour in strata schemes that has some meaningful, disturbing effect on others. Any bylaw that controls behaviour inside a home that does not affect others is contrary to basic habitation rights.

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The problem is that the bylaw making power in all states is extraordinarily broad. Bylaws are the rules written by developers and/or subsequent owners which regulate the common property and private apartments inside a strata scheme. To be valid, a bylaw simply has to relate to the use or enjoyment of a lot (an apartment) or common property. A huge range of bylaws fit that description. For example, a bylaw banning people eating meat in their own apartment is a bylaw that relates to the use and enjoyment of a lot and is prima facie valid (lest that sound fanciful, such bylaws are common in India as a way of religiously segregating housing).

No state, other than Victoria, makes a distinction between the power to write bylaws in relation to common property and private lot property, that is, people's homes. This is irrational.

The new prohibition on bylaws that are "unjust" because they are "harsh, unconscionable or oppressive" was a welcome change to the legislation in 2015.

However, despite Friday's ruling, strata title gives people an unprecedented power over their neighbours’ homes and lives. That power must be wielded reasonably and only when objectively necessary.  In addition, all states should make a distinction between the power to write bylaws in relation to common property and private lot property.

Of course, strata residents should not be subject to barking dogs. Specific pets that cause ongoing problems should be subject to orders for their removal. However, any activity, including keeping a pet, that does not disturb others, is none of the neighbours’ business.

Cathy Sherry is an associate professor, UNSW Law, and the author of Strata Title Property Rights (Routledge, 2017).