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Strata law update – Baxter barks back

The ever-present sight of cranes overhead reminds us that apartment living is now very much part of normal life in Newcastle in 2019 . A strata scheme is essentially a property where there is a division between an individual or private unit and common property.

There are two relatively new pieces of legislation that govern these types of developments in NSW:

  1. Strata Schemes Development Act – this sets out rules for developers, builders and surveyors; and 
  2. Strata Schemes Management Act (“SSMA”)  – this sets out rules for the ongoing management of strata schemes including what to do in the event of a dispute.

Issues with ongoing management of strata schemes are common and range from serious insurance disputes over structural damage in the property, recently highlighted in the media by the Opal building in Sydney, to smaller disputes about noisy neighbours, the use of car parks, pets and trees.

The issue of pets in apartments can a source of dispute and there has been some recent legal guidance on this. Section 139(1) of the SSMA provides that a by-law must not be “harsh, unconscionable or oppressive” and Section 150 gives the NSW Civil & Administrative Tribunal (“NCAT”) power to make orders invalidating such a by-law on application by “a person entitled to vote on a motion making a by-law”.

One recent case involving Section 150 applications was a dispute over the ownership of a pet. In Yardy v Owners Corporation the particular apartment block had a by-law outright prohibiting pet ownership.  The protagonist was Baxter, a small Maltese terrier cross. The owner of the lot (and Baxter) purchased the apartment when the strata scheme by-law stated that keeping animals was permitted with the approval of the owners corporation. On moving in they were informed that this by-law had changed and that pets were prohibited.

Baxter’s owners made a section 150 application arguing the by-law was ‘harsh, unconscionable and oppressive’.  NCAT agreed with Baxter and his owners and observed that because the by-law did not permit any due consideration of the individual circumstances of each lot owner, that it was unnecessarily harsh. NCAT made orders that the by-law be revoked and that Baxter resume his place at the head of the household.

Whether you are a developer, purchaser, owner or renting, there are many legal pitfalls that come with strata schemes. It is always important to seek legal advice early.

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