By Neil S. Hope - Solicitor
Article on adjudicators decisions out of the Office of Commissioner for Body Corporate in January 2018.
Adjudicators’ decisions in Queensland in January 2018 reveal the recurrence of typical issues in disputes in Body Corporates in Queensland including pets, leaving rubbish and storage of items in common areas, building work within lots and within exclusive use areas, defects in meeting procedures, extensions of dates for holding of Annual General Meetings, changes in financial years, and appointments of administrators. AirBnB also gets a mention.
On AirBnB.
In relation to the AirBnB issue, there is nothing in the legislation prohibiting the letting of a unit for AirBnB purposes as was decided in Beach Meet [1]. This article, however, is more about pets, as pets continue to be a recurrent source of dispute within Body Corporates.
Summary of the position on Pets.
In relation to pets in the final analysis;
Body Corporates might as well just adopt the by-law straight out of the legislation when it comes to pets as adjudicators may make orders, to resolve disputes with respect to pets, that are just and equitable and often orders are made with respect to pets contrary to what a by-law might say about pets. This is not a criticism.
Most By-Laws about pets require the consent of the Body Corporate and applications in the main are dealt with by the Committee where the Committee exercises a discretion to say No or Yes. If Yes, the Committee may impose conditions bearing in mind the obligation on the part of the committee to act reasonably and therefore to impose reasonable conditions.
Committee need to consider that their decision may be subject to review by an Adjudicator and Adjudicators may make decisions that are just and equitable.
The contest is between a Lot owner’s inherent right to use his or her own property for lawful residential purposes, including the keeping of pets, just like the owner of any other piece of real estate and the right of other occupiers in the complex to the peaceful enjoyment of the Lot they occupy and of the Common Property.
Blanket bans not allowed.
A blanket ban on pets and a By-Law proposing a blanket ban would, if challenged, be struck down.
See Leeward Tower [2] where a blanket prohibition of pets was disallowed. In that case the adjudicator ordered that a new CMS be registered doing away with the blanket prohibition and adopting a By-Law with respect to the keeping of animals same, as that provided for in the legislation. The point needs to be made here that when a first CMS is registered, a Body Corporate can adopt the By-Laws from the Act or different By-Laws. Clearly, if the different By-Laws with respect to the keeping of animals prohibits the keeping of an animal in the Body Corporate, then such a By-Law will be struck down.
Pets allowed and not allowed.
Historically, pets in certain circumstances have been allowed, but are not always.
In 2007 in Bayshore Central [3] the adjudicator allowed a dog in excess of 10kg of weight although the by-law prohibited dogs that exceeded 10kg in weight. In that case, the adjudicator appeared to focus on matters of nuisance within Body Corporates and particularly referred to s 167 of the Act which provides that an occupier must not use their lot or the common property in a way which causes a nuisance or a hazard, or interferes unreasonably with the use and enjoyment of another lot included in the scheme. This decision is particularly relevant where the By-Law contain no by-law about pets. In such cases no consent is required to keep a pet however the pet owner would need to take into account the obligation not to create a nuisance.
In 2009 in Le Parc [4] a Jack Russell terrier was allowed following a refusal of an application for consent by the committee, again as the obligation on the part of the committee to act reasonably was enforced by the Adjudicator. Nothing presented to the Adjudicator by the committee gave consideration to the circumstances stated by the applicants in their request. This is a salient lesson for committees to not only consider all of the facts and circumstances of the case, including facts and circumstances presented by the applicant to support their case, but also to record that the committee did give consideration to the facts and circumstances presented by the applicant.
In 2016 in Seacrest [5] lot owners were allowed to keep a pet galah named Joe. This is not a case where there had been a blanket prohibition on the keeping of pets. An Adjudicator’s order may provide for conditions with respect to the keeping of a pet where a pet is to be allowed, typically as follows:
Pet must be kept in the lot subject to the approval;
Pet must not be permitted to roam on common property or into other lots;
Pet must enter or traverse common property only for the purpose of being brought directly on to or taken directly off of scheme land, and the pet must be carried or at least similarly restrained when traversing common property;
Pet must not be permitted to make noise or otherwise cause a nuisance or unreasonably interfere with a person’s use or enjoyment of another lot or common property;
Pet must not be permitted to defecate or urinate on common property and if it does so, common property must be cleaned as soon as possible by the owner or occupier of the lot subject of the approval;
Any animal waste must be promptly and effectively disposed of to prevent spillage or odour;
Any local council regulation regarding the keeping of the pet must be complied with;
All reasonable steps must be taken to keep the pet well-groomed, in good health, free from fleas and parasites and vaccinated;
No additional replacement or substitute pet may be brought onto the lot or common property without the prior written approval of the Body Corporate.
In Cascade Gardens Apartments [6], approval was sought to keep a pug-mix known as Daisy in the applicant’s lot. The former relates to the obligation on the Body Corporate and catches a committee as a committee decision is deemed to be the decision of the Body Corporate.
Two decisions where a pet was not allowed.
In Cascade Gardens Apartments, the keeping of Daisy was disallowed, however, it is worth mentioning, the Adjudicator made the point that although having lost, the applicant was not prevented from applying to the Body Corporate again in relation to keeping Daisy. At the heart of the decision-making process for the committee was the obligation pursuant to s 94(2) and s 100(5) to act reasonably. It would be reasonable to think that the second application would only be successful if circumstances changed. In this regard, the arguments against the lot owner keeping the dog centred around the fact that the health of an occupier of a lot would be affected detrimentally by the dog. In this regard, the person responsible for the day-to-day maintenance of the common property and the person frequenting the common property for maintenance purposes suffered from asthma and the Body Corporate’s submission in contesting the application in this regard was that that person’s asthma could be exacerbated by canine dander. The Adjudicator made the point that in considering the reasonableness of the decision of the committee not to allow the dog, the question was not whether the decision was “correct” but whether it was objectively reasonable[7] and further “reasonable” is an objective test which requires consideration of all relevant matters in the circumstances of the particular case.[8] The adjudicator made the point that whilst the applicant would like to have Daisy in her company, the application had no details of any specific circumstances or particular necessity for her to have the dog such that the committee would have had regard to any serious consequences upon Daisy’s owner if Daisy was refused.
Similar circumstances took place in Pacific Vistas [9] where an adjudicator had found that a committee had acted reasonably in not allowing a blue heeler. It is fair to say that whilst there are a number of decisions where an adjudicator has upheld a decision of a committee to not allow a pet, the greater preponderance of decisions are in favour of pets.
The decision relates only to the pet the subject of the application.
It is important here to note that generally pet approvals relate to the pet specifically the subject of the application, and if the owner or occupier wants to keep a different pet in the lot, a fresh application needs to be made to the committee.
In Beaches v Blackshll, a QCAT decision a Cocker Spaniel was allowed in a Body Corporate. This decision is important as it makes the point that the primary issue for a Body Corporate or committee in considering how to exercise its discretion to approve or request an application under its standard by-laws to keep a pet is the likelihood and acceptability of an adverse impact on common property or a person. [10]
In 4 Oak [11], an interim order was made, effectively staying in the interim a committee’s decision to disallow a pet Labrador. The conditions were imposed subject to the interim order that the dog did not cause a nuisance or disturb any other owner or occupier, that the dog must be kept within the confines of the lot the subject of the application, and the other typical types of orders such as the removal of waste, the conditions about restrictions when passing over common property, cleaning up of any waste, keeping the dog clean, registration of the dog with the local authority including the wearing of an appropriate ID tag, and the dog must not present a danger to others if it escaped the owner’s control.
On the obligation of the Committee to act reasonably.
The Act and the regulations to the Act impose obligations upon Committees to act reasonably in making decisions. Decisions of Committees are decisions of the Body Corporate and whilst this article is not about what constitutes reasonableness the following points from case law are worth a mention;
where a decision is to be made ‘reasonably’ or upon ‘reasonable grounds’, the test is an objective one that requires a balancing of factors in all the (material) circumstances according to the ordinary meaning of the term ‘reasonable’;
All (material) circumstances must be evidenced by facts and cannot be speculation of future events; [12]
What is material will vary from case to case but typically the requirement for a decision maker to make a reasonable decision involves some balancing of the interests of the majority and minority and raises questions of fairness; and
“Reasonable” speaks of a term, condition or requirement that is dictated by reason and rationality – not necessarily in which all people or even most people agree.
Conclusion.
A blanket prohibition on pets in Body Corporates will not be allowed.
Restrictive by-laws about pets do not carry a lot of weight.
Committees need to act reasonably when dealing with applications about pets.
The possible impact on other Lot owners and occupiers is an important consideration.
Body Corporates might as well just adopt the by-law with respect to keeping of animals out of the Act which provides the following:
Keeping of animals
The occupier of a lot must not, without the Body corporate’s written approval:
bring or keep an animal on the lot or the common property; or
permit an invitee to bring or keep an animal on the lot or the common property.
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.
Neil Hope - Solicitor
Body Corporate Law Queensland
[1] Beach Meet [2018] QBCCMCmr 39
[2] Leeward Tower [2011] QBCCMCmr 251
[3] Bayshore Central [2007] QBCCMCmr 225; 226
[4] Le Parc [2009] QBCCMCmr 55
[5] Seacrest [2016] QBCCMCmr 28
[6] Cascade Gardens Apartments [2018] QBCCMCmr 32
[9] Pacific Vistas [2014] QBCCMCmr 433; [2015] QBCCMCmr 18
[7] Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125; Re Body Corporate Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor [2014] QCATA 294.
[8] Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission(1997) 150 ALR 1; [1997] FCA 1311; Waters v Public Transport Corporation (1992) 173 CLR 349; Re Secretary, Department of Foreign Affairs and Trade v Styles (1989) 88 ALR 621; [1989] FCA 342.
[10] Tahlia Court [2012] QBCCMCmr 209.
[12] The Noosa Apartments [2018] QBCCMCmr 71.
[11] 4 Oak [2017] QBCCMCmr 632
Disclaimer: This article is intended as general information only and should not be relied upon as legal advice. For specific legal advice please contact us here.
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