There has been a lot of back and forth in the courts this year over the topic of pets in apartments.

Australia has one of the highest rates of pet ownership in the world, with RSPCA research showing that 61% of households in Australia own a pet. No doubt about it, as a nation we love our furry companions.

Here in Potts Point, the most densely populated area of Sydney, most of us lives in apartments. Whether due to phobias, allergies or personal preference, not everyone wants to share their building with an animal.

Pets in apartments in Potts Points is a hot button topic and one that seems to split the suburb.

Here’s the latest on the subject.

The Background

After years of back and forth, a bylaw banning pets from the Elan building in Kings Cross was overturned by the NSW Civil and Administrative Tribunal (NCAT) in October 2019.

Darlinghurst’s Horizon building had been engaged in a similar dispute since 2015, with residents there contesting the residency status of Angus, a 14-year-old miniature schnauzer.

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In May 2020, Horizon and Elan both won on appeal to NCAT the right to ban owners’ pets from their buildings. The barrister representing Elan’s strata committee in the appeal, Richard Gration, is an owner in the Horizon building and described the decision as a ‘victory for democracy’.

Then, in October, a surprise NSW Court of Appeal ruling overturned the right of buildings to pass bylaws prohibiting pets. The ruling means that not only can Angus the miniature schnauzer stay in the Horizon building, but no blanket bans on pets will be permitted in any building anywhere in NSW. The Court of Appeal ruled that such a ban is in breach of NSW strata scheme legislation because it is ‘harsh, unconscionable or oppressive’. The Court also noted that Horizon should pay all costs, thought to be in the vicinity of $500,000.

What happens now?

The only possible avenue of appeal following that decision would be to the High Court of Australia in Canberra. However, the Horizon building opted not to launch a last bid appeal to the High Court. Instead, its strata committee has drafted a new bylaw allowing each apartment to have one pet. The proposed bylaw will go to an extraordinary general meeting of owners on 4 November 2020. Under it, pets must be carried whenever on common property.

The Elan building is now being taken to the NSW Court of Appeal by one of its residents in the ongoing dispute over the right to keep pets in that building.

What does this mean for pet owners?

Although the Horizon decision certainly has wide-reaching implications, it doesn’t mean a free-for-all for pets in apartments just yet. There is still a lot of uncertainty around what the decision will mean. The decision only relates to bylaws prohibiting all pets, and existing requirements around written notification or seeking consent will probably be unaffected.

There is likely to be a long process of pet owners taking cases through NCAT or the courts to get to the bottom of the legal meaning and impact of this decision. If a building is not pet-friendly now, it would seem likely that they would try to implement only slightly less restrictive rules.

Guidance from Parliament could clear up the confusion, and NSW Parliament is currently considering an amendment to the law stopping strata schemes from passing by-laws preventing owners and occupiers from having companion animals.

In the case of renters, they are subject not only to their building’s strata but also to their lease. Many landlords include a clause restricting pets in the residential tenancy agreement, and at present, there is nothing that prevents them from doing so.

Always read the fine print of the Strata Committee or Company Title building’s rules and regulations before you sign on the dotted line to make sure that the building you’re thinking of buying into fits with your ethos. Whether you want to live in a pet-friendly building or prefer an animal-free environment, there’s an apartment building in the Potts Point area that’s right for you.

Article by Jason Boon

In a real estate market that is the focus of Australian, and indeed worldwide attention, Jason Boon's results in the Sydney scene make him a highly significant figure within the industry. A long-term specialist in the Potts Point and inner eastern suburbs area, he is uniquely placed to leverage his skills and local knowledge as the area undergoes significant change and diversification. Jason ha…