Friday, March 14, 2014

A victory for miniature dachshund dog ‘Sebastian’ over the Committee

It seems that Body Corporate Committee members are officiously and uncaringly trying to prevent apartment owners have pets, even though there is no legal or other justification to do so.  A recent case involving a miniature dachshund dog called Sebastian highlights these issues.  The apartment owner was allowed to keep Sebastian in her apartment.

See Bougainvillea [2013] QBCCMCmr 448 (11 November 2013)

"Both the Committee and many submitted appear to believe that By-law 11 prohibits pets in the scheme. That is not correct. Adjudicators have consistently held that by-laws like By-law 11 are ‘permissive’ in that they allow the keeping of pets, albeit with prior consent. 

Adjudicators have further held that where there is a permissive by-law, the body corporate cannot impose an automatic ‘no-pets policy’. A body corporate may have a preference against pets, but it cannot override the potential in the by-law for consent to be given by imposing a policy of banning all animals. Under a by-law of this nature, the committee must consider each request for a animal on its merits and exercise discretion in whether to approve an animal or not. Accordingly the Body Corporate must consider each request on its merits.

Some schemes have tried to adopt by-laws that ban all animals, but this has been found to be contrary to section 169 of the Act. Section 169 provides for by-laws to regulate the use and enjoyment of lot, but does not authorise a by-law prohibiting such use and enjoyment."

"One submission notes that some tenants may have phobias to dogs. Another is concerned that some children could be frightened by the dog. While there may be some basis for genuine concerns about larger dogs, it is more difficult to perceive such difficulties with such a small breed of dog. In any event, if the applicant were to always ensure that the dog was carried or adequately restrained during its brief transits across common property, there seems to me to be little risk of any adverse impact."

See also Sunwaves [2013] QBCCMCmr 433 (30 October 2013)

1 comment:

Frank Higginson said...

You can see a bit more history to that here if you are minded to