Showing posts with label dog. Show all posts
Showing posts with label dog. Show all posts

Wednesday, May 3, 2017

Jack Russell beats the body corporate

The body corporate adjudicator recently allowed a dog to reside in an apartment, even though a number of apartments in the building were used for short term or holiday rentals.

See The Mirage [2017].

"Pets are not necessarily incompatible with high density living. No evidence has been provided that this dog is inherently unsuited to predominantly indoor living.

While it is not possible to determine the basis upon which owners in general meeting voted against motion 11, submissions by the committee and two lot owners raised hypothetical concerns. In particular they are concerned that if the dog barks, the body corporate would not be able to take enforcement action, because the applicants only stay in their unit for one or two weeks per year. In my view it is unreasonable to refuse permission to keep a pet based on hypothetical concerns, without a cogent basis to believe the animal will actually cause problems or the lot owner will not comply with conditions of approval. It is appropriate to impose conditions to avoid problems arising, and to withdraw approval if those conditions are not met.

Similarly, it is difficult to see how the body corporate would not be able to take enforcement action in the event that the applicants’ dog causes a nuisance. While there may be a time delay between when a breach of the conditions occurs, and taking of enforcement action, I do not believe this means that the conditions of approval cannot be enforced against the applicants. The applicants are the owners of unit 25, they stay in unit 25 whenever they visit the scheme and the requested approval relates to the keeping of a dog in unit 25 only. It stands to reason that if the applicants are in breach of the conditions of approval, then the body corporate could withdraw the approval and they would not be able to bring their pet dog into the scheme on future visits to their unit. 

While I note the concerns raised by the owners of unit 45 regarding temporary or short term approvals, any such approval must be given by the body corporate in general meeting in accordance with by-law 11. Further, there is no legal basis for owners to be forced to allow short or long-term tenants to keep a pet in their lot. Even if the Body Corporate approves dogs generally, or in a specific case, a tenant still requires the approval of the lot owner under normal tenancy arrangements. If owners in the letting pool do not want dogs in their lots, they do not have to allow them. Potentially the building manager could decline to accept lots in the letting pool where pets are allowed in that lot."

Monday, August 11, 2014

Dog v. Body Corporate Committee - Dog Wins Again

Harbour Lights [2014] QBCCMCmr 264 (21 July 2014)

Quote:

In McKenzie v Body Corporate for Kings Row Centre, the scheme in question was a high rise building. Despite this, the Tribunal found the scheme could prima facie be suitable for the keeping of pets. Following this decision, I am not satisfied the unit in question is inappropriate for the keeping of this dog merely because it is a ‘unit’ (as opposed to a house or other dwelling type) or contained in a high density housing area. Further, I note that no evidence whatsoever has been presented to suggest that the dog in question is too large or otherwise inappropriate to be housed in the applicant’s unit. Accordingly, I am not satisfied these arguments form a reasonable basis to deny the applicant’s pet request.

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)

Saturday, June 1, 2013

Pet Disputes

It is becoming common for owners to seek permission to have a pet, for the body corporate committee to refuse, and for the body corporate committee to be overruled.  See recent cases:
  • Cat allowed in Eden by the Bay
  • Cat allowed in Horton Apartments
  • Decision not to allow dog by body corporate suspended for further review
  • Dog allowed and bylaw prohibiting animals struck out

Thursday, July 26, 2012

Pets - from a reader

We’re big fans of your blog over at Insurancequotes.org and wanted to share with you one of our new favorite posts, about pet and home renting, called, 8 Risks of Renting with a Pet. Your readers might also be interested in taking a look, and we’d appreciate it if you have the space to mention or feature it alongside your regular posts.

Wednesday, May 23, 2012

No Pets Policy Unreasonable

A recent decision holding that a "no pets policy" was unreasonable.  See Palm Grove Village.

In another recent decision, Bay Vista Apartments, the adjudicator decided that it was permissible for a potential resident (owner or tenant) to obtain approval prior to becoming a resident:

"I see no reason why a lot owner could not seek approval for a pet on behalf of a prospective owner who would like to keep a pet if they became an owner, or indeed for a prospective lot owner directly seeking approval for a pet. Similarly I see nothing to prevent an owner seeking approval on behalf of a current or prospective tenant. Of course any approval would be conditional on the person actually purchasing (or leasing) the lot. ...

In my view, preventing consideration of pet requests by or on behalf of a prospective lot owner or occupier creates unreasonable difficulties for an owner in selling or leasing their lot. It is entirely understandable that people with pets would not wish to rent or buy a lot without the prior assurance that they will be able to keep their pets. If they are not permitted to seek approval until they move in, they will be in an invidious position if approval is not then given.

I am at a loss to see what possible disadvantage there could be to the Body Corporate from deciding the matter before a sale or lease is completed. It could seek reasonable further information about the prospective occupant or pet if they wished. If approval is given conditional on the sale or lease being completed, it lapses if the sale or lease does not proceed. By deciding the issue before the occupancy commences, they also avoid the situation of an unapproved pet being brought on the scheme while a decision is pending."

Sunday, April 15, 2012

Dog Allowed, Yet Again

"Based on the material presented, I am not satisfied the committee’s decision to deny the applicant’s pet request was reasonable in the circumstances. This is particularly the case given that no evidence has been provided to suggest the dog barks excessively or otherwise causes a nuisance which interferes with other owners use and enjoyment of a lot or common property. Accordingly, I consider the applicant should be granted permission to keep her dog in her unit pursuant to by-law 11. "

See Gateway Gardens Decision

Saturday, March 31, 2012

Another Victory For the Dog

Body Corporate for River City Apartments CTS 31622 v McGarvey [2012] QCATA 47 (12 March 2012)
"The relevant context, in my opinion, is simply that there may be a number of types of scheme, in which owners and occupiers may have a number of different objectives and uses for their lots, and the very nature of any community titles scheme requires that relationships between owners and occupiers must be regulated in some discernible fashion, and by reference to reasonable criteria unless otherwise specifically provided.

So where does this leave a by-law such as by-law 13, which purports to prohibit altogether the keeping of animals on a lot?

In McKenzie, the by-law in question did not prohibit the keeping of pets, but only the keeping of certain types of pets. Therefore, I concluded, it did purport to regulate, rather than to prohibit, a use of lots in the scheme – namely, the keeping of pets.

In prohibiting the keeping of pets altogether, the by-law in this case is analogous to a by-law that prohibited altogether a particular manner of using or enjoying a lot by carrying out building works. In Mineralogy, the Court of Appeal expressed the view that such a by-law would be invalid. Similarly, a by-law that prohibited altogether the playing of music in a lot would be invalid, whereas one that prohibited playing music above a certain level of sound between certain hours would be one regulating the use and enjoyment of lots.

In my view, a by-law that prohibits altogether the keeping of pets in lots is not a by-law regulating the use or enjoyment of lots, but purports to prohibit a particular use and type of enjoyment altogether. It therefore goes beyond the scope of a valid by-law permitted by s 169 and is invalid."

Monday, February 13, 2012

Another Decision in Favour of the Dog

See Decision allowing resident to keep a dog named Beau in an apartment at Marcoola Beach.  Decision here.  The residents opposed the dog.  One of the grounds was that no other holiday apartment buildings allow dogs.

Saturday, December 3, 2011

Pets in Apartments

Another decision concerning the keeping of a small dog in an apartment -- Arbour on Grey.  Here, the dog owner was unsuccessful.  But the decision confirms that it is not appropriate to have a "dog free" building.

If conditions are imposed, they must be reasonable.  See the recent 212 Margaret decision. The following conditions in the bylaws were struck down as unreasonable:
  • the pet does not weight (sic) more than ten (10) kilograms.
  • only one animal is to be kept within the lot.
  • the body corporate shall be entitled to withdraw its consent and require removal of the pet upon receiving two (2) substantiated complaints regarding the pet or the owner breaches any of the conditions of the approval.
I am always amazed that some body corporates want to ban pets.  It just deceases the pool of possible buyers, and thus deceases the value of their apartments.

Sunday, May 22, 2011

Keeping a Dog is Not Unreasonable

"Two extreme examples can be given to show what clearly falls outside the purpose of the by-law making power:

  • Firstly, it could not be intended that the body corporate be empowered to make a by-law saying that residents cannot play chess on their property. This is a completely private activity that could in no way affect other residents. A by-law prohibiting playing chess could not be described as being for the purpose of the control, management, administration, use or enjoyment of the lots and common property.
  • Secondly, it could not be intended that the body corporate be empowered to make a by-law saying that residents cannot conduct private conversations on their property. In some cases private conversations could be conducted so loudly that other residents will be disturbed. A by-law requiring residents to shut all doors and windows when entertaining guests after 11pm might be justified as being for the management of noise. However, a blanket prohibition on conducting private conversations that will normally not adversely affect other people could not be for the purpose of the control, management, administration, use or enjoyment of the lots and common property.

The present situation in which a by-law prohibits the normal residential activity of keeping a cat or dog is not as extreme as either of the above examples. However, it is of concern that the body corporate has adopted a blanket prohibition on dogs and cats when the keeping of such pets is a normal residential activity in Queensland and these pets can commonly be kept without interfering with the enjoyment of neighbouring residences. Of course, some pets will interfere with the enjoyment of neighbouring residences. However, adopting a blanket prohibition against every single cat and dog is unreasonable, disproportionate to the potential problem, and outside the scope of a by-law for the purpose of the control, management, administration, use or enjoyment of the lots and common property."

See Villa Casablanca decision

Tuesday, March 15, 2011

Another Dog Decision

"The standard is one of reasonableness of course. Any dog will bark now and then."
Another decision allowing dogs in apartments and invalidating a by-law. See Vantage.

Saturday, December 18, 2010

Pets in 212 Margaret

As reported in a prior post, there was a decision relating to pets in 212 Margaret apartment building in Brisbane. Here is the Decision.

It is interesting to read the submissions of some apartment owners who tried to prevent pets in other people's apartments. Maybe we should have a rule that says no children and TVs in their apartments. I have lived in expensive apartments in other cities where most people have pets. Some people in Brisbane are quite backwards! It is also strange that people have argued that there should be no pets because the building is being used (illegally) as a hotel!

"Jo Anast, owner of Lot 81, says she would like the possibility of having pets in the scheme and is in favour of the application.

Shane Doepel and Shaun Stevens, owners of Lot 31, say that the building is not suitable for housing pets in any circumstances, being a high-density CBD residential development. Most of the units are let as part of a very busy hotel. The scheme only has “modest common areas.” Owners who are buying into the scheme do so knowing that there is a “no pets” policy which in their case influenced their decision to buy.

Frank and Marilyn Moes, owners of Lot 61 (unit 1501) say that they purchased because of the “no pets” policy. They do not believe that living in the city is an appropriate environment for animals such as dogs and cats. There are no immediate close areas where a dog can be exercised, and dogs and cats should not be in all day but have a yard to play in and access to fresh air. Mr Moes also has an allergy to animal hair.

Rachel Findlay, owner of Lot 23 (unit 805) supports the application, believing it unreasonable to ban all pets. She has lived in CBD buildings which allow pets, and the animals have not been disruptive. In “Aurora” at 420 Queen Street, it is one of the reasons why the units are highly sought after. The body corporate should allow pets within reason such as pets below a certain weight/size.

Maria Barnett and Paul Schaller, owners of Lot 121 (unit 2701), say that before purchase they checked that pets were not allowed. He has severe allergies to dog and cat hair and would not be able to use the lifts or foyer if there was animal hair in the carpets. They say that in their experience with tenants, fish tanks can cause damage to carpets, clog drains and leave stains. The building is used as a hotel so a blanket ban on pets in not unreasonable. No matter how well- behaved pets are, they would cause extra work for the management and result in blocked-in balconies which would change the exterior of the building.

Verne Baistow, owner of Lot 95 (unit 2203) says that he supports a “no pets policy.” The units are too small to provide adequate room for an animal, and the units are used for hotel accommodation. “No animals are allowed in hotels” so there should not be any animals in the scheme building either. He is also concerned about health issues and noise.

Colin Yeoman and Louisa Farthing, owners of Lot 33 (room 1005) say that the registered by-law should remain as it is, since the building is inappropriate for the housing of pets.

Christine Torbey, owner of Unit 1801, says that the building is an inappropriate residence for pets, especially dogs and cats. Animals are unpredictable and it is not possible for an owner to control entirely an animal’s behaviour. She says that this is a “standard rule in city apartment blocks generally.”

Gregory Firth, owner of Unit 603 says that the scheme should not entertain pets at all."

Saturday, November 13, 2010

Pet Friendly Apartments

A resident of an apartment recently filed a dispute resolution request to an Adjudicator within the Body Corporate Commissioners Office in Brisbane, disputing the current status of the by-law in the residential high-rise building 212 Margaret Street, BRISBANE QLD 4000. The resident was protesting the total pet ban in the buildings by-laws.

Basically, the Adjudicator has upheld the protest that the 212 Margaret by-laws, which did not permit any pets at all, were invalid and unenforceable, and has ordered them changed to a permissive by-law. This dates back to a CCT ruling in 2008 (Tutton v Body Corporate for Pivital Point Residential) where the CCT magistrate ruled that total pet bans were unreasonable since certain species of animal could on no rational basis cause any difficulty to any other lot owner.

The Adjudicators have been ruling that total pet bans are invalid since that time (there are quite a few decisions it seems), and have forced Body Corporate's in every case since to alter their by-laws back to standard (animal/pet) permissive ones when an owner applies for Adjudication.

In addition, it appears there has been a further QCATA ruling in September 2010 -- McKenzie v Body Corporate for Kings Row Centre 28/09/2010 -- in which the tribunal decided that even by-laws that attempt to ban only a certain type of pet (cats and dogs) are also so unreasonable as to be effectively invalid and unenforceable. In that case, the disputed by-law was permissive of pets in general but attempted to outright ban only 'cats and dogs' specifically.

Essentially this all comes together to mean that a (or any! within a Community Titles Scheme) Body Corporate can no longer expect to ban pets (or any kind of pet) outright, even if they have already done so by voting in a ban/restrictive by-law, or even if the building was originally set up with a pet ban/restrictive by-law.

It also means that if anyone protests such a restriction, the Adjudicators will uphold their protest, allow the pet (if it's a reasonable request and there is no evidence of a reasonable reason the pet would be unsuited to the property), and forcibly change the by-law back to a permissive one. Just like they just did with 212 Margaret.

The flow on outcome from these rulings are clear: the face of Community Titles Schemes must now change - pets can no longer be banned, and Committees and Body Corporate's can no longer expect to stop people from bringing their pets to live with them in apartments, units or townhouses - unless they can provide reasonable grounds or evidence that the particular pet would be unsuited to the lot. From what I understand, this new thinking has already been tested multiple times in the Appeals process and the Adjudicators subsequent interpretation of this has also been made abundantly clear.

212 Margaret is now (forcibly) pet friendly.

Which is probably a good thing, because statistics I have seen show that apartment buildings that are pet friendly have more owner occupiers and have greater capital appreciation.