What is the Next Chapter for Pets and Strata?

If you are an owner or occupier of strata property,  you could not help but notice the flurry of activity over the last couple of years, both at a legislative level and in the Courts of New South Wales in relation to the question of pets.

In the next (but probably not the last) instalment of this saga, the New South Wales Government is implementing amendments to the legislation and to regulations, to commence on 25 August 2021.

Amendment to the Strata Schemes Management Act 2015

Commencing on 25 August 2021, section 137B will be inserted into the Act. Section 137B effectively prevents a by-law, or a decision of an owners corporation under a by-law, from banning the keeping of an animal within a strata scheme unless the animal unreasonably interferes with another occupant’s use and enjoyment of their lot or the common property.

The question which arises from this section is what is meant by “unreasonably interferes with another occupant’s enjoyment of their lot or the common property”?

The New Regulation

Also, now to commence on 25 August 2021 is the Strata Schemes Amendment (Pets) Regulation.

The specific purpose of this regulation is to set out, for the purposes of section 137B, the circumstances in which the keeping of an animal unreasonably interferes with an owner or occupant’s use and enjoyment of their lot.

In short, this new regulation says that an animal will cause an “unreasonable interference” with an owner or occupant’s use and enjoyment of their lot if:

• the animal makes a noise which interferes with the peace, comfort and convenience of another occupant;
• the animal repeatedly runs at or chases another occupant, visitor or another animal;
• the animal repeatedly causes damage to the common property or to another lot;
• the animal endangers the heath of another occupant through infection or infestation;
• the animal causes a persistent offensive odour that penetrates another lot or the common property; or
• for dogs and cats, the owner of the animal fails to comply with orders under the Companion Animals Act 1998.

The provisions also pick up the provisions of the Companion Animals Act 1998 which refer to a “restricted” dog and a “menacing or dangerous” dog. Those dogs will be able to be banned from strata buildings.

Conclusion

It will be interesting to see whether these additions to the strata legislation assist or provide more interpretive problems for owners corporations.

Author I Warwick van Ede I Lawyer I BEc LLM Acc Spec (Property).

For all NSW strata legal advice including by-laws, building defects and levy collections contact us here or call 02 9562 1266, we’re happy to assist.

‘Smoke Drift’ in Strata Blocks

In Australia, most apartment blocks, old or new have banned smoking in common areas such as hallways, common living spaces, outdoor communal areas and more.

In some states, strata committees have completely banned smoking in all areas of apartments by introducing smoke free by-laws.

And… fast becoming a reality in strata living is a total ban with smoke free apartment blocks.

In recent times second hand smoke has become a major health concern in Strata blocks with organisations such as the Cancer Council getting behind the move.

With this fight against smoke drift and new precedents being set landlords, owners corporations and strata managers need to carefully consider what kind of smoking by-laws will be implemented in their strata blocks. Here we outline three options:

1. Unrestricted Smoking By-law

Many older strata blocks may have unrestricted smoking as a default by-law unaware that they are leaving themselves in a vulnerable position. They should consider reviewing their by-laws to keep up with the latest health concerns and legalities.

2. Limited Smoking By-law

A ‘middle ground’ by-law may limit lot owners and tenants to only smoking within their apartment but not in common areas. However, there have been a number of cases where fines of up to $11,000 have been issued due to second hand smoke creating health issues.

3. Complete Smoking Ban By-law

Only some states currently allow a complete smoking ban. A complete ban includes all areas of apartment blocks, including individual apartments, balconies and common areas.

Ensure Your ‘Smoke Drift’ By-laws are Up to Date

If smoking is a problem in a strata building, the owners corporation should make a by-law prohibiting smoking. This type of by-law is simple to prepare and enforce. Orders can be obtained to stop residents smoking and put an end to second hand smoke drift. It’s also important to note that smoke drift can also be caused by BBQ’s.

Support for smoke-free multiunit living is high particularly among people living with children. It is only a matter of time before most strata buildings go smoke free.

DO YOU NEED YOUR ‘SMOKE DRIFT’ BY-LAW CHECKED?

For all NSW strata legal advice including by-laws, building defects and levy collections contact us here or call 02 9562 1266, we’re happy to assist.

The Strata Schemes Management Amendment (Sustainability Infrastructure) Bill 2021 is expected to commence in mid-2021.

Overview of New Laws

The key features of the Bill are as follows:

1. An owners corporation will be able to authorise the installation of sustainability infrastructure (such as solar panels) on common property by passing an ordinary resolution.

2. Any decision by an owners corporation that would unreasonably prohibit the keeping of an animal on a lot will have no force or effect.

3. It will be possible for a by-law to prohibit the keeping of an animal (such as a dangerous dog) on a lot if that prohibition is reasonable.

4. An owners corporation will need to keep voting records regarding a secret ballot confidential unless directed to make those records available for inspection by a court or NCAT.

5. NCAT will need to provide a copy of any strata application that is lodged by any person to the owners corporation of the strata scheme concerned.

6. An owners corporation will need to serve a copy of any NCAT application it receives on each owner instead of just placing a copy of the application on the noticeboard.

7. NCAT will have the power to require a person to pay a penalty of up to $5,500.00 for breaching an order made by NCAT.

8. A person who owns more than one lot in a strata scheme will be able to appoint a single proxy in respect of all of the lots (to prevent the limitation on the number of proxies a person can hold stopping this from occurring).

9. A proxy appointment form for a meeting will still be valid even if the meeting is adjourned to a later date.

Conclusion

These new laws will make it easier for owners corporations and owners to install solar panels and implement other “green” initiatives, clarify the validity of “no pets” by-laws and close a loop hole in the strata legislation that prevented NCAT imposing penalties on people who breach orders.

For all NSW strata legal including by-laws, building defect and levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

How should your owners corporation deal with a request from a lot owner to attend at Mediation?

Mediation is an important part of the dispute resolution processes for strata schemes pursuant to the Strata Schemes Management Act 2015.

A recent decision of the Appeal Panel of NCAT  has underlined the need for agreements reached at Mediation to be sufficiently certain if they are to be capable of being enforced under the strata legislation.

This in turn raises questions about how owners corporations should approach Mediation, particularly the most common form of Mediation for strata matters, under the auspices of Fair Trading NSW.

In this recent case we explain how getting the wrong advice can stop you from enforcement.

Where ever possible an owners corporation should take the following steps Mediation and the Right Advice.

For all NSW strata legal including by-laws, building defect and levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

How will you respond to the recent decision of the Court of Appeal in the Cooper case which says that a by-law prohibiting pets is invalid?

Will you wait for the dust to settle before deciding what you will do?  Or will you act now and change any by-law that prohibits pets?

Any owners corporations that wait for the dust to settle following that decision before changing their pets by-law may well live to regret that decision.

In this article we take a closer look at each of different approaches and recommend why playing the waiting game could be your undoing.

Read the full article here: Why is it important to update your pets by-law NOW?

CONTACT US HERE TO REVIEW YOUR ‘NO’ PETS BY-LAW

For all NSW strata legal including by-laws, building defect and levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

Late 2019 a major development occurred for the strata industry when the New South Wales Civil and Administrative Tribunal (NCAT) held that Biowood cladding is combustible, poses an undue risk of fire spreading and is a major building defect.

As of yesterday 4 August, 2020…

In a first for Australia, NCAT’s Appeal Panel upheld a 2019 finding by NCAT that Biowood cladding installed on the facade of a multi-storey building in Sydney is combustible and must be removed.

The owners corporation of the building was successfully represented by Mueller’s and is the first reported case where a Court or Tribunal has upheld a finding that a particular type of cladding is combustible.

The outcome of the case represents a win for owners corporations and sends another timely warning to builders and developers that use of combustible cladding is fraught with risk and carries with it substantial consequences.

The first case in Australia (and globally) the decision in this case sets a precedent A Win for Owners Corporation – Biowood Cladding Confirmed Combustible

For NSW strata legal, by-law, building defect and levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.