Australians love their pets. And Catherine Henry Lawyers is a pet friendly law firm. Catherine Henry’s dog, Billie (pictured), can often be found helping around the office. So, we thought we’d provide fellow pet owners and animal lovers with a guide to pets and the law.
We answer the common questions people have about their rights and responsibilities when it comes to their four legged or feathered friends. This is timely because new rules have come into force in NSW about buying and selling cats and dogs.
From 1 July 2019, people advertising kittens, cats, puppies or dogs for sale or to give away in NSW need to include an identification number in advertisements. The identification number can be either:
- a microchip number
- a breeder identification number
- a rehoming organisation number.
The rules apply to all advertisements, including those in newspapers, local posters, community notice boards and all forms of online advertising, including public advertisements on websites and social media sites.
To find out more about the changes visit the Department of Primary Industries website.
Top 10 guide to pets and the law
Q1. Can you include your pet in your will?
Yes. You can:
- say in your will how you want your pet to be taken care of
- leave money to an animal charity with a legacy program
- set up a trust and appoint a trusted carer to care for your pet
- leave money in your will to a friend or family member so they can look after your pet.
Q2. What are the rules for keeping pets in strata schemes (units, apartments or townhouses)?
Whether you can keep your pet in the strata scheme depends on the terms of the By-laws which apply to the scheme. You do not need Owners Corporation consent to keep a guide dog or hearing dog in a strata scheme.
The Schedule 1 By-laws for schemes registered before 1 July 1997, permit you to keep an animal, if you have obtained the prior written approval of the Owners Corporation. The approval of the Owners Corporation cannot be unreasonably withheld.
By-law 16 of the Model By-laws for schemes registered on or after 1 July 1997 contains three options for keeping animals. Some Owners Corporations also make “house rules” to be followed by owners and occupiers. These are not enforceable unless they are registered as By-Laws for the scheme with Land and Property Information NSW which is part of the Department of Lands.
You must obtain the prior written approval of the Owners Corporation, before keeping any animal, except fish in a secure aquarium, on a Lot or the Common Property. The approval of the Owners Corporation cannot be unreasonably withheld. This is the default option.
You must obtain the written approval of the Owners Corporation, to keep any animal (except a cat, a small dog or a small caged bird, or fish kept in a secure aquarium) on the Lot or the Common Property. The approval of the Owners Corporation cannot be unreasonably withheld. If you keep a cat, small dog or small caged bird on the Lot then you must:
- notify the Owners Corporation that the animal is being kept on the Lot
- keep the animal within the Lot
- carry the animal when it is on the Common Property
- clean all areas of the Lot or the Common Property that are soiled by the animal.
No animals are permitted, except for a guide dog or hearing dog.
Renting with pets
You may have to obtain the consent of the Owners Corporation, even if your landlord agrees that you may keep your pet in the rented premises.
Once you have reviewed the By-Laws, you should ask the real estate agent to speak to the landlord of the property on your behalf about keeping a pet.
You should not sign the lease until you have been informed by your landlord or the landlord’s agent that consent has been granted by both the landlord and the Owners Corporation.
Buying with pets
If you intend to buy into a strata scheme, and wish to keep a pet, you should check with the Owners Corporation as to the terms of the By-Laws. You should check any information you receive from the Owners Corporation with your solicitor. It is very important to make these enquiries before you enter into a contract for sale.
Q3. Can my neighbour or their pets come onto my land?
A neighbour can generally only enter your land if you have told them they can, or if they have a right of way or other right of access to your land (an easement). However, if they have entered your land previously and you have not complained, a court may consider that you have given your permission.
Similarly, their pets cannot come on to your property either. If you have previously told a neighbour they or a pet can enter your land (or did not object previously), you can withdraw your permission whenever you like. Once you do, they must leave immediately, otherwise they are trespassing.
If someone trespasses on your land, or if their pet does, you have the right to sue them for any damage.
Q 4. I am getting divorced ‑ who gets the dog?
Australian family law does not expressly acknowledge the existence and role of pets within family breakdowns. There is no reference to animals within the Family Law Act
Pets are treated as part of the property pool under section 79 of the Act. People can transfer the ownership (and registration) of a pet to one another in much the same fashion that a car might be transferred upon the breakdown of a relationship.
If there is dispute in relation to the ownership of the pet or as to who should receive the pet, Courts consider the merits of each person’s application. This can involve the Court looking at factors such as who the pet is registered to, who cared for the pet and spent more time with the pet and took on responsibilities such as feeding, walking and training the pet.
Courts don’t look at what is in the “best interests” of the pet or who should obtain custody of the pet, as is the case with children.
Q5. What are the laws regarding assistance animals?
An assistance animal is a dog or other animal that has been trained to assist a person with a disability. It is illegal to discriminate against a person because they have an assistance animal. This extends to situations like employment, education, and the provision of goods, services or facilities. If you believe you have been discriminated against because you have an assistance animal, you may make a complaint to the Australian Human Rights Commission.
Q6. What happens if my animal goes to the pound?
Any animal that is found must be either returned to the owner or taken to the local council pound, or any approved premises, and the owner must be notified as soon as possible. A stray or injured animal can be taken to an approved premise such as the local vet.
If the animal is not claimed within 72 hours, that premises is obliged to hand the animal to the local pound. Unclaimed or surrendered animals can be sold or destroyed by the pound after 14 days but if there is no owner or the owner cannot be identified, then the number of days is reduced to 7.
Councils can determine any fees and charges that they wish to charge in relation to the seizure and sale of an animal.
Q7. What can I do if neighbour has complained about my dog or cat?
Each Council has an established procedure for investigating barking dog complaints. It is common practice for Councils in urban areas to require complaints from more than one resident before acting.
Under the Companion Animals Act persistent barking is on par with straying or other anti-social behaviour. If a Council officer identifies a serious or ongoing problem, a Nuisance Dog Order may be issued.
A cat can be declared a nuisance under the Companion Animals Act if it:
- repeatedly damages anything outside the owner’s property or
- repeatedly interferes with the peace, comfort or convenience of a person by being continuously noisy.
Council Officers may issue an Order to the owner to prevent the nuisance behaviour. Such Orders are in force for 6 months and cannot be appealed or reviewed.
Q8. What constitutes a dangerous or menacing dog?
A dog may be declared ‘dangerous’ if, without being provoked, it has attacked or killed a person or animal; has repeatedly threatened to attack or repeatedly chased a person or animal; or is kept or used for hunting. A dog may be declared ‘menacing’ if it has shown unreasonable aggression towards a person or animal or has attacked a person or animal without being provoked and without causing serious injury or death.
Council officers must first write to the owner of a dog it wishes to declare as dangerous or menacing. A dog owner has 7 days after receiving a notice to object to the proposed declaration.
The owner of a dog that is declared to be dangerous or menacing must follow ‘control requirements’, which includes de-sexing and keeping the dog properly enclosed. Failing to follow a dangerous dog declaration can result in the dog being euthanised.
Q9. What can I do if my pet has been injured by another animal?
Compensation can be sought for veterinary bills and medications if an animal is injured by a dog.
Owners of dogs that have attacked or injured another animal can be found guilty of a criminal offence if the local Council decides to prosecute.
Dogs may be seized if it is reasonable and necessary to protect any person or animal from injury. Dogs responsible for attacking or injuring can be seized by any person if the dog is on property owned or occupied by that person.
Q10. What are my rights and responsibilities if my dog has injured or killed another person or animal?
When a dog has attacked and injured a person or animal, an owner may be liable to pay damages for veterinary bills, medical bills and possibly the replacement of the victim animal.
An owner can also be open to criminal prosecution under the Companion Animals Act and can be disqualified from owning a dog for up to five years if found guilty.
A person in control of a dog who causes the dog to inflict grievous or actual bodily harm on another person can also be open to prosecution under the Crimes Act.
If a person dies as a result of the injury caused by a dog, the ability to make a claim for damages will be extended to the deceased’s family members.
In some circumstances, home and contents insurance policies may cover damages associated with injury or death caused to a person or animal, even if the injuries occurred away from the insured premises.
Where a dog has injured or killed a person or animal, it is possible for the Council to make an order declaring the dog dangerous.