What do animals and hard surface flooring in strata schemes have in common?
Well, to start they can be divisive. In a strata law context by-laws regulating both subjects have been challenged in the NSW Civil & Administrative Tribunal (“NCAT’) as being in breach of section 139(1) of the Strata Schemes Management Act 2015.
Section 139(1) states:
“A by-law must not be harsh, unconscionable or oppressive”
If a by-law is found to be in breach of s139(1) it may be invalidated upon application by the NCAT.
Both of the by-laws regulating animals and installation of hard surface flooring contained an absolute prohibition.
Interestingly, in February 2018 when finding the animals by-law to be harsh, unconscionable or oppressive & ultimately invalid the NCAT noted:
- A blanket prohibition against the keeping of animals within strata schemes is unnecessary.
- Due regard had to be given to contemporary standards which supported the keeping of animals in Strata schemes.
- Keeping an animal in a lot may also be ‘a part of a lot owner’s basic right of habitation’.
- Although the by-law on its face would have prohibited the keeping of an assistance animals this by itself did not make the by-law invalid as section 139(5) regarding assurance animals meant to the extent that it purported to do so it would have no force or effect.
The NCAT also states that a blanket prohibiting was a ‘blunt instrument’ and provided no means a a person’s special circumstances to be considered.
In August 2018 the NCAT considered the hard surface flooring by-law. Again the by-Law was found to be invalid. In this instance it was found to be invalid for two reasons.
First, it was held that a by-law outright prohibiting the installation of hard surface flooring was inconsistent with section 110 of the Act. Section 110 provides a process for the application to conduct and the approval for ‘minor renovations’ which include installing such flooring. For a reminder please see my blog on minor renovations and section 110. As the by-law was inconsistent with s110 it was of no force or effect.
Secondly, the by-law was found to be harsh, unconscionable and oppressive as it attempted to prohibit installing hard surface flooring in circumstances where the Act has provided a process for it.
What do these two cases mean?
A by-law containing an outright prohibition is likely to be held to be harsh, unconscionable and oppressive and may be invalidated by the NCAT.
Contemporary community standards need to be considered as does whether the by-law attempts to regulate behavior regulates in the Act itself.
Pingback: NSW: Animals and hard surface floors in strata schemes: an update·
Do owners and other residents have basic rights of habitation?.Or only those who want pets.
Also owners corporations can say the same, that it is harsh, unconscionable and oppressive to force owners to be subjected to pets they don’t want.
If the majority vote against pets, then that should prevail.
I thought we lived in a democracy.
Do owners have ANY rights?
Seems not. UNfair Trading.
Hi Sue, Yes the strata committee can, provided the owners corporation has authorised it, call meetings electronically. If the vote is by email then of course no one actually attends and there is no discussion. If the vote is by telephone conference then you could still attend the meeting – your strata manager should give you contact details to be able to log into the conference or web forum. Remember though that if you are not a strata committee member you do not have a right to address the meeting unless the strata committee resolves to let you do so. As for democracy, I have heard many times in NCAT that owners corporations are not a democracy (1 vote 1 person) and I agree. Why? Voting rights are based on unit entitlements and can be restricted. The ability of a strata committee to make decisions via electronic meeting while convenient does cut down on discussion. My advice is to choose your strata committee with care. Allison
Do you know the case details for the August 2018, Hardwood Flooring By-Law decision by NCAT, cant find it anywhere?
Hi. I think the case you are referring to is: Gurram v Owners Corporation SP 36589  NSWCATCD 39. Allison