Recent reforms to the Residential Tenancies Act 1987 (WA) (“Residential Tenancies Act”) have resulted in significant changes to the rights of residential tenants to keep pets, and the rights of landlords to insist on pet-free dwellings.[1]
The changes have emerged from a review of the Act initiated by Consumer Protection[2] in 2019, with the aim of identifying potential legislative improvements to address issues in Western Australia’s evolving residential tenancy market.
The new residential tenancy pet laws, along with a number of other important amendments to the Residential Tenancies Act,[3] are now in force.
One issue identified by Consumer Protection following its review was that:
“Tenants who currently have pets or wish to have a pet often face limited choice in the number of rental premises available or face uncertainty if they move to another rental property. Tenants can be faced with the significant emotional stress of having to abandon a much loved pet in order to secure housing.”[4]
Under previous laws, tenants were required to seek landlord consent to keep pets on residential premises. Landlords could withhold consent without specifying grounds, and there was no further recourse available to a tenant if consent was refused.
Although landlord consent to the keeping of pets is still required under the Residential Tenancies Act reforms, the grounds on which a landlord can withhold consent are now essentially limited to circumstances where the pet in question is a dangerous dog,[5] where the keeping of the pet is prohibited by law,[6] or where the landlord can persuade the Commissioner for Consumer Protection that there is good reason to refuse consent.[7]
An important additional ground on which a landlord can lawfully withhold consent to the keeping of pets may arise where the residential dwelling in question is situated within a strata scheme. If the scheme’s by-laws prohibit pets, then the landlord can withhold consent on that basis.[8]
In addition, the Residential Tenancies Act amendments make it clear that the keeping of pets is “subject to … the scheme by-laws … and … if, under the scheme by-laws, the consent of the … strata company is required to keep a pet at the premises – any conditions of the consent”.[9] This means that, even if a landlord is inclined to consent to the keeping of a pet, the strata company may have the last say on the matter.
Where there are scheme by-laws in place that restrict the keeping of pets within a strata scheme, they are not easily overcome. The validity of such by-laws was explored by the State Administrative Tribunal in Steele and The Owners of Cocos Beach Bungalows Survey Strata Plan 42074.[10] In that case, the by-law in question prohibited owners and occupiers from keeping pets without the unanimous consent of all lot owners. The strata company refused the applicants’ request to keep their pet chihuahua “Matilda” in their unit. The applicants argued that the by-law was invalid on the grounds that it was oppressive, unreasonable, unfairly prejudicial or unfairly discriminatory.[11] However, the Tribunal disagreed, leaving the ultimate fate of Matilda unclear.
In light of the above issues, it may be that more and more strata companies will now seek to pass scheme by-laws that allow for some degree of control over the keeping of pets within the scheme (to the extent that they have not already done so).
Disclaimer
This post has been prepared as a general summary only. It is not, and is not intended to be, legal advice with respect to any particular matter. This post should not be relied on with respect to any particular matter without taking legal advice. Stork Davies Legal Advisors disclaims liability to any person who relies on this post without taking legal advice from the firm.
[1] Section 3 of the Residential Tenancies Act defines “pet” to mean “an animal other than an assistance animal”. Although this article does not cover the keeping of assistance animals, section 50A(3) of the Act makes it clear that assistance animals can be kept on residential premises without landlord consent.
[2] A division of the Department of Energy, Mines, Industry Regulation and Safety.
[3] See the Residential Tenancies Amendment Act 2024 (WA).
[4] Consumer Protection, Department of Mines, Industry Regulation and Safety, Government of Western Australia, Decision Regulatory Impact Statement, A review of the Residential Tenancies Act 1987 (WA) (January 2022) <https://www.commerce.wa.gov.au/sites/default/files/atoms/files/rta-dris-2023.pdf>, page 90.
[5] Regulation 12BB of the Residential Tenancies Regulations 1989 (WA).
[6] Section 50D(a) of the Residential Tenancies Act.
[7] Sections 50D(b) and 50E of the Residential Tenancies Act.
[8] Section 50D(a) of the Residential Tenancies Act.
[9] Section 50A(4)(c) of the Residential Tenancies Act.
[10] Steele and The Owners of Cocos Beach Bungalows Survey Strata Plan 42074 [2021] WASAT 101.
[11] Pursuant to section 46(j) of the Strata Titles Act 1985 (WA).