My Strata Companion is an Animal
And, I don’t mean they are just badly behaved …
Apart from the topical and ongoing personal, societal and legal debates about controls on pets in strata buildings, there’s a group of animals that are exempt from any strata by-laws or rules. So, who are they, how do the exemptions work and how should they be handled?
[7.50 minutes estimated reading time, 1492 words]
Introduction
The issue of pets in strata buildings and the controls that have and are being imposed on them has become a hot topic in the last few years with major cases, strata law changes, reform proposals and changing societal views [especially since the beginning of Covid-19].
I’ve written about those things a few times as follows.
And, of course there’s the NSW Court of Appeal decision about pet by-laws I wrote about in The Dogs of Strata War or The By-Law is Dead: Long Live the By-Law.
But, there’s always been a group of animals that are exempt from any strata by-laws or rules.
They are the disability pets or assistance animals of strataland.
So, who are these special pets, how do the exemptions work in strata buildings and how should those special pets and owners be handled by strata stakeholders?
Generalisations about exempt strata pets
In general terms, animals that assist people with disabilities cannot be excluded from strata buildings whether they are there with visitors to the strata building or if they live with strata owners or residents.
It’s also likely that any by-law or rule made by a strata building that prevents those kinds of assistance pets in a strata building will be invalid and/or will not be enforceable against those animals of their carers or owners.
Strictly speaking, these pets are known as assistance animals and not as disability pets, hearing dogs, seeing-eye dogs, or companion animals [although that’s commonly heard].
Companion animal is a term used in most state laws to simply define pet animals [as in they are a person’s companion or friend]. So, it’s not an accurate way to identify special or exempted pets since that term encompasses all pets.
And, disability pets, hearing dogs, seeing-eye dogs are old terms that have been replaced by the term companion animal.
Assistance animals can be more than just dogs or cats [as other species are covered] and can provide assistance to people for more than just hearing and seeing disabilities. But, a pet that is an assistance animal needs to be identified as an assistance animal and getting that status usually involves some kind of training.
So, in most situations, the real challenges for strata buildings with assistance animals living there and who want to monitor and manage pets properly are to:
properly identify whether or not a pet is an assistance animal, and
satisfy themselves the pet is assisting a person with a disability.
Those things may be harder than you think given the way things are defined in the relevant laws and the understandable privacy concerns and, sometimes, challenges of people with disabilities.
So, let’s look at some of the applicable laws and how they operate in strata buildings.
Australian disability laws
The starting point for most pet exemptions in strata buildings is the National Disability Discrimination Act 1992 which defines an assistance animal and disabilities.
Assistance animals can be a dog or other animal:
that is state accredited as trained to assist persons with a disability to alleviate the effect of the disability, or
that is accredited by an animal training organisation as an assistance animal, or
that is trained to assist a person with a disability to alleviate the effect of the disability.
So, that’s both a formal and informal definition that can include a wide range of pets.
Disabilities are also widely defined to include any of the following that has in the past affected, currently affects, or might in the future affect the person:
total or partial loss of bodily or mental functions,
total or partial loss of body parts,
having bodily organisms causing disease or illness,
body malfunctions, malformations and/or disfigurements,
disorders or malfunctions causing learning differences, or
disorders, illnesses, or diseases that affect thought processes, perceptions of reality, emotions, judgments or that causes disturbed behaviour.
So, they cover a wide range of physical and psychological conditions.
A state-based example from New South Wales
So, as an example, how do these pet and assistance animal exemptions work in New South Wales?
In New South Wales a few different laws operate exempt some animals from strata by-laws prohibiting or restricting them from strata buildings.
Section 139(5) of the Strata Schemes Management Act 2016 operates to make any by-law or provision of a by-law that prohibits an assistance animal [picking up the National definition] unenforceable. But, that section does permit by-laws that require proof of the pet’s assistance animal status.
Section 136 of the Strata Schemes Management Act 2016 also makes a by-law that is inconsistent with another law ineffective so would prevent a by-law that cuts across the National Disability Discrimination Act 1992.
So, even without section 139(5), a by-law restricting assistance animals from being in the building would probably be invalid or ineffective.
And, of course, Coopers Case decided by the NSW Court of Appeal in 2020 also makes a by-law that prohibits or restricts assistance animals invalid on general principles and as harsh, unconscionable or oppressive under section 139(1).
The Companion Animals Act 1998 also defines a companion animal as a dog, cat or most other domestic animals that are kept by a person.
It goes on to require the microchipping and registration of some of those kinds of animals and provides for the control of other kinds of dangerous, restricted, or nuisance animals. It also imposes a range of behavioural controls on pets and pet owners including things like:
desexing,
wearing collars and tags,
keeping control of pets,
where pets can and cannot enter,
defecating controls and remedies, and
pet owner liability.
So, the Companion Animals Act 1998 sits around pet ownership generally including pets in strata buildings, and could be used to better manage pets and pet owners by strata buildings even if they are assistance animals.
There are similar laws in most other states about the kinds of by-laws and rules that can be made by strata buildings, and the general management of pet ownership in the community.
Assistance animal management strategies for strata buildings
So, if assistance animals are permitted to be in strata buildings, what strategies can they adopt to manage them better? Here are some ideas.
1. Get information about the pet and the pet owner.
Ask strata owners or residents to notify the strata building if they have or need an assistance animal and to provide supporting documents about the pet, the assistance animal status of the pet by certificate or training, and, the reason they need the pet’s assistance in general terms that doesn’t include personal information.
2. Maintain that pet information for transparency
Record the details of the pet, the strata owner or resident, and its assistance animal status in strata building records so they are available to future managers and committees for operational purposes so that strata records searches reveal the pet’s presence and for dealing with any complaints about the pet.
3. Make and apply conditions to the assistance animal
Impose reasonable conditions on the behaviour of the assistance animal having regard to the nature of the person’s disability and the needs of the building. These conditions can be one-off for that pet and pet owner or can be made generically for the strata building in by-laws or rules.
4. Consider the general laws about pet ownership
Review, consider and apply the general laws about pet ownership and management to the assistance animal [and other pets in the strata building] rather than having stricter or unique conditions, by-laws or rules. They are more comprehensive than you might think and will be more likely to be validated and enforced if challenged.
5. Handle complaints and problems sensibly
Since assistance animals cannot be excluded from strata buildings, if there are behavioural problems [like noise, damage, soiling, etc] it will be necessary to resolve them to ensure good resident relations and harmony. That may involve non-confrontational and less aggressive dispute resolution techniques.
After all, the strata building can’t get the assistance animal removed and if the pet owner is also a strata owner, they aren’t likely to leave.
Conclusions
Even though assistance animals are exempt from exclusionary by-laws or rules, they aren’t exempt from reasonable controls.
And, like most things that could go wrong or create conflict in strata buildings; it’s better to know about the assistance animal, apply reasonable conditions or controls on them that mirror what happens in the broader community, and, resolve issues involving the pet or pet owner by less confrontational processes to achieve long term harmony in the building.
Finally, remember and respect the needs of the strata owner or resident who needs the help and companionship of an assistance animal.
August 11, 2021
Francesco ...