What can the Owners Corporation do when?
a) the strata scheme has adopted a no animals by-law
b) a lot owner has a disability and believes that a companion animal will assist them
c) the Owners Corporation proceeds to enforce the no animal by-law
d) the lot owner obtains a companion animal anyway on the belief that the pet is an Assistance Animal.
When the no animals by-law is adopted by the scheme to accommodate one or more lot owners who have medical issues such as an allergic reaction to animal hair, the debate can become heated.
It extends beyond whether a scheme should allow the keeping of animals in a strata scheme, to the rights of one lot owner who is unable to, or does not wish to live with animals on the scheme, and the rights of another lot owner who wants or needs to have a companion animal due to reasons including a disability.
Australia is a nation with one of the highest pet ownership rates in the world, and with a growing urban population, living in a house with a yard is no longer feasible. As a result the rules governing keeping of animals in strata schemes will necessarily evolve with community expectations and become more animal friendly.
The current Strata Schemes Management Act 1996 (the Act) prohibits an Owners Corporation from creating by-laws that prevent the keeping of a guide or hearing dog. The prohibition will be broader in the new legislation and will rely on the definition of an Assistance Animal in the Disability Discrimination Act 1992 which includes a dog or other animal that provides assistance to people with disabilities.
However, there is still a lack of legislative guidance on the criteria for what qualifies as an Assistance Animal under the Disability Discrimination Act 1992. It provides that animals will qualify if they are trained by a recognised training organisation but animals who are not can also qualify if:
a) they are trained to assist a person to alleviate the effect of a disability; and
b) to meet standards of hygiene and behaviour that are appropriate for an animal in a public place
The definition of recognised training organisation is not stated, nor is there a criterion for what training is required or what standards of hygiene and behaviour are necessary.
This is compounded by the fact that New South Wales, unlike many other Australian states, does not have a registration scheme for Assistance Animals. While there is the Assistance Animal Permit that can be obtained from RailCorp for Assistance Animals to travel on public transport, the criteria is up to RailCorp’s discretion.
Therefore, there appears to be no clear cut answer to questions such as what evidence can the Owners Corporation can ask for, how much evidence they can ask for, and how persuasive it must be.
Without a prescribed list of information and clear procedures in place, avoidable conflicts between lot owners, occupiers and the Owners Corporation are created. In many cases, the owner or occupier will simply feel that they have no option but to obtain an animal without obtaining consent from the Owners Corporation and face the consequences later.
What should an Owners Corporation do?
As Assistance Animals are protected by the law, an Owners Corporation should first ensure that any by-laws that relate to the keeping of animals does not prohibit owners and occupiers from keeping an animal that is an Assistance Animal.
When the new legislation comes into effect, any by-law that prevents or restricts the keeping of an Assistance Animal on a lot will be unenforceable (Strata Schemes Management Act 2015). However, the legislation does not stop the Owners Corporation from making rules about the behaviour and management of animals on the scheme such as noise and hygiene.
The Queensland Government has recently introduced a streamlined process for guide, hearing and assistance dogs to be certified (Guide, Hearing and Assistance Dogs Amendment Bill 2015) and it is yet to be seen if the NSW Government will follow suit.
Due to all of this, the debate will continue to rage on whether an Owners Corporation will be able to prohibit animals (apart from those specifically excluded).
In the meantime, the following steps may be taken by the Owners Corporation which should make the process less painful for all parties involved:
- if the by-laws prohibit the keeping of animals, ensure that clear reasons are provided on why (noting that these may be challenged in time)
- make sure that the by-laws do not prohibit the keeping of Assistance Animals
- consider passing a by-law that establishes a clear and specific process for owners and occupiers to obtain approval for an animal. Tthe process should include a list of information that must be provided, such as medical evidence of the effect of the disability (if an Assistance Animal), evidence of the training received by the animal and official documentation from the relevant training organisation)
- consider passing a by-law that regulates the behaviour of all animals on the scheme where the animals have been approved by the Owners Corporation (noise, hygiene, etc)