Tuesday, November 15, 2016

Pets in Body Corporate Communities – Free For All

Recent decisions through the Commissioner for Body Corporate and appeals have resulted in an about face in regards to permission for pets in Body Corporate Communities.

Adjudicators rulings indicate that by laws in many Body Corporate Communities are now not worth the paper they are printed on and may discriminate against some owners in regards to pet approvals.

As a result of the decisions, Body Corporate Communities would be unwise to have a by law in place that bans or restricts pets. They should also consider removing any by law that restricts the size of a pet eg "dogs must be smaller than 10kg" and they should also be aware that restrictions on the number of pets per owner may well be invalid.

Pets in Body Corporate Communities: Background

1. Pet Approvals in Body Corporate Communities

Seachange Retirement Village 1140-2010 In this ruling, the Adjudicator addressed the "issue of reasonableness" in relation to keeping pets in Body Corporate Communities. He stated: "The most significant of these was a decision to invalidate a by-law for Kings Row Centre that prohibited residents from keeping dogs or cats.

In that decision, the Appeal Tribunal within the Queensland Civil and Administrative Tribunal determined that a by-law cannot contain a blanket prohibition on the keeping of dogs and cats. This was even though it was a high rise scheme in which it was recognised the keeping of a cat or a dog in a safe and healthy environment within the owner’s unit could inconvenience other residents."

The Adjudicator went on to say: "Following this decision, adjudicators have found pet by-laws to be unreasonable when they have involved a ban on the keeping of dogs or cats based on an arbitrary size or an arbitrary number of desired pets."

2. Weight Restrictions for Pets

Riverside Park (2011) 0958-2010 The Adjudicator states: "I believe its (sic) is quite possible for some breeds of dog exceeding 10 kilograms in weight, to be kept within lots without causing nuisance or annoyance to other lot owners. As a number of owners have pointed out, some small dog breeds have a high activity level and a propensity for barking whereas some dog breeds grow to more than 10kgs but rarely bark.

Further, given that there is vehicular access to each lot, it would be possible to transport an animal to and from a lot by vehicle, thereby obviating concerns regarding the presence of larger dogs on common property. Having regard to the circumstances, I am of the view that to the extent that by-law 16.1 restricts ownership of dogs to dogs not exceeding 10 kilograms in weight, that part of clause 16.1 is unreasonable and therefore invalid."

3. Restrictions on the Number of pets

Vantage (2011) 0978-2010 The Adjudicator ordered: "I further declare that Hendrik Zeeman is entitled to keep the two terrier dogs Dougal and Turbo on his lot subject to any reasonable conditions which may be imposed subsequently by the body corporate".

The Body Corporate was ordered to draft and submit a new CMS with ammendments to their by laws regarding the keeping of animals. Prior to recent rulings, some Adjudicators had dismissed various applications from owners or occupiers who wanted to keep pets despite by laws that prohibited the keeping of animals.

Adjudicators now appear to be adopting the approach that all owners are entitled to keep pets on their lots provided that those pets do not disturb or cause a nuisance to others.

This does seem to be a reasonable approach but many Body Corporate Communities still maintain by laws that are out of date and are discriminatory to others. One other issue that will be addressed in the future is whether owners should allow their friends and family to bring pets to their units or townhouses.

There are many logical arguments in favour of this, particularly in light of recent decisions. I believe it is discriminatory to prevent a bona fide visitor to bring a pet to a Body Corporate Community. It is likely that an Adjudicator will be required to address this at some point in the future. The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way.

I have spent many years participating on a number of different Body Corporate Committees and provide an owner's perspective on Body Corporate issues.
If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

I am the owner of http://www.moviemem.com/

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