OPINION: The NSW government has flagged that it will amend the model bylaws for strata and community schemes so that the default option will be that people can keep pets. The government is to be commended for the work it has done on strata law, and its preparedness to amend draconian laws, but the proposed pet changes do not go far enough.
What people do in their own home is no one else's business unless it disturbs others. What colour we paint our walls, what kind of covering we have on the floor and what kind of pet we have on the sofa is no concern of the neighbours.
If the floor covering we choose means that every step we take reverberates in the apartment below, then our floor covering is most definitely the neighbours' business and can be rightly regulated. The same goes for a pet that barks all day or night; that pet should be out. But until our pets disturb others in some meaningful way, there is no justification for them or us being controlled by bylaws.
Blanket pet bans in strata schemes can stop someone keeping a cat that never leaves an apartment but can do nothing about neighbourhood cats sunning themselves or doing less picturesque things in the common property garden.
Strata and community title are a subset of property law and, contrary to the mantra commonly heard, they create freehold, Torrens titles. One of the fundamental principles of property law in a liberal democracy is negative liberty. This stipulates that the only justification for regulation of citizens is to prevent harm to others. While negative liberty may not be sufficient to create a decent community, few would suggest the principle is wrong. All of us benefit from it every day as we carry on our lives free from the arbitrary interference of government and our fellow citizens.
Owing to the high-density nature of schemes and shared common property, strata and community title need special rules to ensure people get along and care for the building. That does not mean the ordinary principles of property law, particularly those that protect something as important as our personal autonomy and privacy, do not apply.
The problem with the proposed changes is that they will go into ''model'' bylaws. These can be excluded from the outset or subsequently altered with a special majority vote. If schemes so choose, they can still ban all pets, including cats which never leave their apartments or dogs which rarely make a noise. This is profoundly undemocratic. Democracy means majority rules but only in relation to things that genuinely affect others.
The majority should have no ability to ban activities on common property, let alone in the privacy of people’s own homes, that have minimal impact on others.
Cathy Sherry is a Senior Lecturer in Law at UNSW. She teaches land law and a postgraduate course on strata and community title.
This opinion piece was first published in The Sydney Morning Herald.