How Pet Loving are Victorian Strata Buildings?
Or, are strata pets living under sufferance and on good behaviour bonds …
Things have been looking pretty good for pets in strata and other buildings in Victoria. But, the laws and court decisions are not completely comforting, the fights are not over yet, and, the future for strata pets will likely depend on their [and their pet owner’s] behaviours …
[9:50 minutes estimated reading time, 1877 words]
Introduction
Victoria's strata and rental laws operate to make it easier, but not certain, that strata owners and renters can have pets in their apartments.
In this article, I cover how these laws work, what is happening in Victorian strata buildings, and where the cases and latest pet trends are taking things for strata stakeholders concerning strata living pets.
Victorian strata laws
The standard or default Victorian strata building rules do not prohibit pets or require advance permission for strata owners and residents to keep a pet in a strata building.
Rather, Model Rule 4.1(4) of the Owners Corporations Regulations 2018 authorises strata buildings to decide [at a meeting] that an animal that is already in the building is a danger or is causing a nuisance to the common property, which, when notified to the strata owner or resident requires them to remove the animal under Model Rule 4.1(5) of the Owners Corporations Regulations 2018.
But, strata buildings can make new and different rules about pets by a three-quarter majority vote and registration on the plan title under sections 138, 139 and Schedule 1 of the Owners Corporations Act 2006.
So, many strata buildings change the standard or model rule about pets to prohibit them, require advance approval for pets and/or impose controls on the number, size, and type of pet that can be kept in the strata building. The rules often mirror the kinds of provisions found in other state strata by-laws or rules.
As a result, it’s quite common for strata owners and renters to find themselves in a Victorian strata building that is no pets and/or where they have to get approval for their pet and [sometimes to have that approval refused] with all the usual dilemmas and challenges of such situations.
Victorian strata laws also contain a provision in section 140 of the Owners Corporations Act 2006, like the provisions that exist in many other states, that makes any rule or change to a strata rule ineffective if it unfairly discriminates against a strata owner or resident, if it is inconsistent with any law, or if it limits rights or avoids obligations under any other law.
So, it’s very likely that the reasoning the NSW Court of Appeal applied to no pets or pet ban by-laws in Coopers Case in 2020 will similarly apply to section 140 of the Owners Corporations Act 2006 and any no pet or strict pet rules in Victoria [see my article ‘The Dogs of Strata War or The By-Law is Dead: Long Live the By-Law’].
Finally, when, or if, there is a dispute in a Victorian strata building about a dangerous or nuisance pet, a no pets strata rule or a strata building’s refusal to give pet approval, that dispute can be decided by VACT under section 162 of the Owners Corporations Act 2006. So, strata pet owners and unhappy strata buildings can have their issues resolved there.
Victorian rental laws
Victorian rental laws changed in 2020 to also reverse the onus about pets in rental properties between renters and owners.
A Victorian renter must have permission from the owner to keep a pet in rented premises [apartments and other kinds]. But, there’s now also new a regime created under sections 71A to 71E of the Residential Tenancies Act 1997 that has the following features:
options for owners’ approval or VCAT orders to keep a pet,
a renter application process,
an approved pet application form,
obligations on owners to act reasonably when considering pet applications,
obligations on owners who don’t want to approve a pet to seek VCAT orders about that,
rights for owners to seek VCAT orders to remove pets where there has been no application, approval or VCAT orders for it,
automatic owners’ approval after 14 days if they don’t apply to VCAT,
the ability to include conditions on pet approvals, and
VACT powers to make orders about pet approvals, conditions or removal.
Owners can’t require pet bonds as an approval condition in Victoria.
But, renters are responsible for their pets and liable for any damage the pet causes.
If a renter’s pet application or an owner’s refusal is reviewed by VCAT, it can consider the following things:
the type of pet the renter proposes to keep, or is keeping, on the rented premises,
the character and nature of the rented premises,
the character and nature of the appliances, fixtures and fittings in the rented premises,
whether refusing consent to keep the pet on rented premises is permitted under any Act, and
the old catch-all, any other matter VCAT considers relevant.
Where the rented property is in a Victorian strata building, the renter is also subject to the strata laws and any rules made by the strata building about pets.
So, whilst renters have robust rights over pets vis-a-vis their strata apartment owner, they still have to deal with any strata law or rule-based restrictions in the strata building.
So, there’s a double hurdle for strata pets to overcome.
The relevant Victorian cases
There’s been a few important cases decided in Victoria about pets in strata buildings and/or rules as follows.
Balcombe’s Case [Victorian Supreme Court - 2015]
The leading case about Victorian strata buildings’ rule-making powers.
This Victorian Supreme Court decision considers the purposes of strata buildings and the connections that must exist between those purposes and rules deciding that the following principles apply:
First, it is necessary to determine the legal purpose to be addressed by the rule by reference to the scope, object and subject matter of the strata laws.
Secondly, it is necessary to characterise the rule by reference to the applicable circumstances, operation, and effect based on evidence of those circumstances and a reasonable view of the actual or threatened problem it addresses.
Thirdly, to assess whether the connection between the operation of the rule and the legal purpose of the power is sufficiently direct and substantial and whether the rule is reasonably proportionate to that purpose.
In other words, a rule has to address a legitimate strata building purpose that can be identified in the strata laws and must be proportionate to the strata building’s circumstances and the ‘issue’ it addresses.
Whilst the decision was about a rule controlling short term letting, it applies to all kinds of rules including pet prohibitions and controls.
In this case, the Victorian Supreme Court invalidated the rule prohibiting short term letting.
Owners Corporation PS501391P v Balcombe [2015] VCAT 956
Watkin’s Case [VCAT - 2016]
A case about the enforceability of strata building rules prohibiting pets on common property.
In this case, VCAT decided that rules prohibiting pets can validly be made by Victorian strata buildings under the principles in Balcombe’s case. But, the restriction against pets on common property in this strata building’s rules effectively prevented the owner to access her lot property [a townhouse] with her dog and was, as a result, discriminatory.
So, the pet owner was permitted to keep her Cavoodle dog, despite rules prohibiting pets but was ordered to keep it on a leash or restrained whilst on common property
Owners Corporation SP24474 v Watkins (Owners Corporations) [2016] VCAT 1312
Jagger’s Case [VCAT - 2020]
A case about the new Victorian renter laws over a pet in a strata building.
In this case, despite the strata apartment owner’s objection and strata building rules prohibiting pets, VCAT allowed this German Shorthaired Pointer dog to remain in the strata building after considering the merit-based criteria in section 71E of the Residential Tenancies Act 1997 [like the nature of the apartment, the dog’s characteristics and the owners circumstances] and by relying on Watkin’s Case to say that the strata building rule prohibiting pets was unenforceable.
Jaggers v Webster & Others (Residential Tenancies) [2020] VCAT 556
Stock’s Case [VCAT - 2020]
This case is not really about keeping pets, but rather about feeding pigeons in a strata building.
However, it’s instructive on the topic of animals in strata buildings and other ways problem pets and animals could be dealt with by strata buildings.
I’ve written about this VCAT decision in my article ‘The Strata Gavel: How Many Pigeons are Too Many?’.
Owners Corporation RP000992 v Stock (Owners Corporations) [2020] VCAT 495
So, it appears that the Victorian cases and decisions are trending in favour of pet approvals in strata buildings and limiting the enforceability of no pet strata rules.
Trends and predictions for pets in strata buildings
Based on these laws, decisions and the societal trends I’m seeing, I believe we’ll see the following developments in relation to pets in Victorian strata buildings.
1. There’ll be plenty more pets in strata buildings as individual loneliness and isolation increases, pets become more popular generally, more and more families live in strata buildings, the laws keep relaxing and changes in societal values make pets more welcome and acceptable everywhere.
2. Some strata buildings and strata owners will still not want pets in their buildings, so there’ll be continuing [and possibly increasing numbers] of strata disputes over keeping pets in strata buildings which will need to be decided by VCAT and Courts.
3. There will be a further evolution of the interpretation of strata laws about rule-making powers in Victoria following Balcombe’s Case because of the decisions made by superior Courts in other states, the innovations strata buildings and their lawyers will make to create new rules to get around decisions, and, future legal challenges to those new cleverer rules. Plus, I don’t think that VCAT’s application of the restrictions on discriminatory rules in Watkin’s Case is entirely correct to prohibit all kinds of pet control rules.
4. Strata buildings and other strata stakeholders will eventually move their thinking and approach from denial to resigned acceptance, and, then intelligent management of pets in strata buildings. That will occur as they discover that people living with pets in strata buildings is the new norm and just another thing to keep organised in the plethora of strata operational issues. Just like we’ve had to manage kids, noise, parking, laundry, garbage, etc.
5. The future for individual pets in strata buildings and the pet owners will depend on their behaviours. So, whilst most pets will be permitted to move into and live in strata buildings, if and when the pets cause problems that the pet owners won’t or can’t address, we’ll see VCAT orders and other Court decisions removing the pet. So, the focus will shift from considering objective matters relating to the pet to subjective matters relating to the pet [and owner] behaviour.
6. The wellness and psychological benefits of people living with pets might start to pervade strata buildings, strata owners [whether pet owners or not] and others to improve everyone’s experience of strata apartment living and ownership.
More information and thoughts
If you’re interested in the issues about pets in strata buildings you might also like my article ‘Covid-19, Pets & Strata in 2021’.
Plus, I recommend reading The Australian Housing and Urban Research Institute’s research paper ‘No. 350 - Housing and housing assistance pathways with companion animals: risks, costs, benefits and opportunities for this sub-group of strata pets’.
August 16, 2021
Francesco …