Pet by-laws
The Office for the Commissioner for Body Corporate and Community Management continues to receive a steady stream of dispute resolution applications relating to the keeping of pets in lots in community titles schemes.
The issue in these disputes centres on the application of the scheme’s pet by-law. The schemes in which disputes arise the pet by-law tends to take one of two forms. Contested pet by-laws usually either purport to ban pets from the scheme entirely or provide that a lot owner or occupier shall not, without the written approval of the body corporate, keep an animal on the lot.
The arguments often presented in dispute resolution applications by bodies corporate defending by-laws purporting to ban the keeping of animals are that the scheme has always had a ban on pets, that this position is supported by the majority of owners and a single owner should not be able to interfere with the will of the majority.
There is now a body of decisions both of department adjudicators and of the Queensland Civil and Administrative Tribunal on appeals from adjudicators’ orders that make it clear that such a position is not sustainable.
The law in relation to this issue is stated in body corporate for River City Apartments v McGarvey [2012] QCATA 47. The essential issue in the case was the validity of a by-law that provided: “An owner or occupier of a lot must not keep an animal upon their lot or the common property.”
QCAT recognised the power of the body corporate under s 169(1)(b)(i) of the Body Corporate and Community Management Act 1997 to make by-laws for the regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme. In that context the tribunal considered the question whether a blanket ban on the keeping of pets can properly be considered as providing for ‘regulation’, as distinct from the prohibition, of the use or enjoyment of lots.
QCAT found 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 section 169 and is invalid.
As noted above, the other common formulation for pet by-laws is that an animal cannot be kept without the written approval of the body corporate. Adjudicators refer to this as a permissive by-law and have consistently held that the proper application of this by-law requires the body corporate to consider each application on its merits. Disputes arise regarding permissive pet by-laws when bodies corporate refuse applications to keep pets without providing adequate reasons demonstrating proper consideration of the relevant circumstances.
Warwick Court [2012] QBCCMCmr 550, was such a case. The adjudicator in Warwick Court pointed out that many owners in schemes with a permissive by-law take the by-law to mean pets are not allowed. The adjudicator stated that this is not the case and it is the responsibility of the body corporate administering such a by-law to properly exercise its discretion by considering each application on its merits. The adjudicator went on to say that the primary issue for a body corporate considering a pet application is the likelihood of an adverse impact on common property or any person.
Where there are genuine concerns, the imposition of reasonable conditions on keeping the pet may be more reasonable than outright refusal.
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