Pets and Bodies Corporate
An issue that continues to stream across our desks is the matter of keeping animals in a Body Corporate Community. Many Bodies Corporate that we manage have different Pet Policies. So which policy is the most acceptable? Some complexes implement a ‘No Pets Policy’, denying all requests from Occupiers / Owners. Others have a more sympathetic approach and provide approvals on specific terms. We are often asked what right does a Body Corporate have to deny an Occupier’s request to keep an animal? In our experience this is a bit of a grey area. As the need for change in the Body Corporate Legislation becomes more apparent, what happens in the meantime? To give you an idea of the different Body Corporate ‘ Keeping of Animals’ By – Laws out there, examples can be found below: –
‘An Owner or occupier of a Lot must not keep an animal upon their Lot or the Common Property’.
‘Subject to s143 of the Act, no dog or cat of any kind is allowed to be kept within a lot, with the exception of those animals currently registered as approved by the Committee as of 18 January, 2004’.
‘The occupier of a lot must not, without the body corporate’s written approval—
(a) bring or keep an animal on the lot or the common property; or
(b) permit an invitee to bring or keep an animal on the lot or the common property.
(2) The occupier must obtain the body corporate’s written approval before bringing, or permitting an invitee to bring, an animal onto the lot or the common property’.
So let’s start with the basics. The Body Corporate By- Laws dictate the provisions of the Body Corporate. These By – Laws can be found in the Body Corporate’s Community Management Statement (CMS). Body Corporate By – Laws must be adhered to by all Occupiers, Owners and Tenants. That being said, By – Law limitations do exist in the Legislation. Committees need to be aware of these limitations when creating new By – Laws as, if a By – Law contravenes a limitation, the By – Law cannot be enforced and will be ruled invalid. A relevant limitation that could apply relating to the Keeping of Animals By Law is Section 180 (7) of the BCCM Act in that ‘a by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme (BCCM Act 1997 (QLD)’. So what is considered to be unreasonable? In the case of River City Apartments (2011) QBCCMCmr 184 (3 May 2011), the Adjudicator found that the Body Corporate’s By – Law placed a ‘blanket’ ban on all animals within the scheme. The By- Law was ruled invalid and therefore could not be enforced. The grounds given in the determination was that an absolute ban on the keeping of animals was unreasonable. When it comes to individual cases it is important to consider what is considered ‘unreasonable’. This of course, can be left up to interpretation.
Often Body Corporate Committees will argue that Owners purchase into a complex knowing the Body Corporate By- Laws and therefore should accept them. Further, keeping animals in close confines result in undesirable circumstances such as odours and noises, not to mention the small packages being left on the common property footpath. So which point of view is right? Ultimately, with the legislation the way it is, these matters are put forward to Adjudication and the Adjudicator will assess the circumstances and will come to a determination based on case law, current legislation and their interpretation of the case.
So before initiating an application it’s important to review the By – Laws and review your circumstances because you don’t want to go barking up the wrong tree!
Please note that the above information is not formal advice.
Picture in text – http://www.save.ca/community/is-pet-insurance-a-good-idea
For information on the Body Corporate and Community Management Act follow the link below:
For information on the Adjudicator’s Order RE River City Apartments follow the link below:
Queensland Body Corporate and Community Management Commissioner – Adjudicators Orders – River City Apartments (2011) QBCCMCmr 184 (3 May 2011) http://www.austlii.edu.au/au/cases/qld/QBCCMCmr/2011/184.html
Body Corporate /Bodies Corporate/ Pets