Wednesday, May 3, 2017
Jack Russell beats the body corporate
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
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."
Saturday, June 1, 2013
Pet Disputes
- 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
Saturday, May 11, 2013
Thursday, July 26, 2012
Pets - from a reader
Wednesday, May 23, 2012
No Pets Policy Unreasonable
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. ...
Sunday, April 15, 2012
Dog Allowed, Yet Again
See Gateway Gardens Decision
Saturday, March 31, 2012
Another Victory For the Dog
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.
Monday, February 13, 2012
Another Decision in Favour of the Dog
Friday, January 13, 2012
Why are Landlords Hostile to Pets?
"Brisbane vet Michael O'Donoghue has seen too many people have to give up, or put down, their pets because they could not find a rental property that welcomed animals.
Saturday, December 3, 2011
Pets in Apartments
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.
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."
Tuesday, March 15, 2011
Another Dog Decision
Saturday, February 19, 2011
Pets and Apartments - A different spin
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
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.
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.
Thursday, September 3, 2009
Pets and Prices
"But real estate agent says pet-friendly apartment buildings are worth more than those that prohibit pets. "Any small apartment block that doesn't allow pets is crazy," Leonarder Collins says. "Owners are just doing themselves out of money."
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