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The bylaw in my strata plan won’t allow me to “keep” a dog more than 350mm tall but I don’t live in the unit, I live in the country and visit the city unit with my 450mm-legged dog, usually only for one or two days a week. Is this still considered “keeping” or is the pet just a visitor and therefore exempt?
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You really need to post a copy of the relevant bylaw to be sure, but my opinion is they can deny you permission.
Claiming the dog is a visitor is possible but it has been ruled (in QLD) that a visitor staying overnight is considered a temp resident and so not allowed to use the visitor car parking.
The reasoning behind this was short term letting in tower blocks to holidaymakers who were using visitor parking bays claiming they were visitors (which they were) resulting in no Visitor bay being available to genuine visitors. This same argument could be used throughout Oz.
If you are going to claim the dog is just a visitor you need to find out what NSW define as a visitor.
“keep” means to have on your Lot or on the Common Property, so KWP’s right about the Owners Corporation (O/C) being able to deny you permission for your dog, even on a casual basis.
Again, and depending upon the wording of your Plan’s ridiculously prescriptive By-Law such as where you may need to advise the O/C of the dog being “kept”, surely nobody’s going to quibble over 100mm even if they could measure your dog’s legs!
I think you might find that many buildings with restrictive pet by-laws also forbid visitors from bringing pet – any pets – into the building.
I would bring the dog and lie about it’s height. Who’s measuring?
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
A country-based dog of that size might be at risk of going ‘stir-crazy’ if confined within an apartment in the city.
Does Wirihana’s block have the standard by-law with the clause that permission to ‘keep’ the dog may not be withheld unreasonably? If the dog can be documented as a well-mannered example of a breed with a reputation for good behaviour, then a challenge to a refusal might well succeed on those grounds.
I’d say you are pretty much stuffed.
The only argument I can see is for discrimination against you by not applying the bylaws universally.
Take photos of the cats roaming common areas and other dogs not being carried over the common areas to show the bylaws aren’t being applied fairly. You could even take photos of resident cars parked in visitor parking bays, rubbish left on common areas, etc to show the EC aren’t applying any of the bylaws consistently.
If you took this to conciliation and then adjudication I believe you would loose BUT the adjudicator might insist that the EC enforce the bylaws against the other pet owners not complying with said bylaws.
Informing these pet owners of your intention (and one of the consequences) MIGHT be enough to cause the EC to reconsider action against you.
I believe OC should be allowed to restrict pets but only if they apply them fairly to everyone.
Haven’t found a def of Strata Visitor for NSW and the one for QLD was from an article commenting on the ruling but I’ve been unable to find the ruling.
Wirihana – your original post mentioned that you were “keeping” your dog on the Plan for only one or two days per week, and I incorrectly interpreted that was on a casual basis.
Now you say that it’s been one or two days (or more?) per week for four months, so clearly you’re in breach of the By-Law and as I foreshadowed you should have at least advised your Owners Corporation (O/C) that you’re keeping the dog on your Lot, and indemnify the O/C and other Owners as required.
You’d be well advised not to become involved in semantics and to accept that you’ve done the wrong thing, and that’s particularly important as you’ve now been issued with a Notice to Comply.
With regard to the eviction of a tenant for what I assume was a similar breach of the By-Law, the delay was more than likely due to the fact that and O/C cannot evict tenants (mores the pitty) and it therefore had to prevail upon the Owner / Landlord or their Agent to travel the convoluted route necessary in order to initiate that.
I’m sorry Wirihana, but my physic powers were unable to predict the snippets of additional and highly relevant information that your posts continue to reveal; perhaps my response to your first post should have been “why do you ask?”
.The Notice that you’ve received states that you must comply with the By-Law so your next step is to do that, not by removing your dog but by again advising the Owners Corporation (O/C) that you’re keeping the dog on your lot, by including a copy of your original advice to the Strata Manager (or at least a reference to it if verbal), that you will comply with all provisions of the By-Law, and that you indemnify the O/C and other Owners as required.
It’s a well accepted principle that a Plan’s (Special) By-Laws cannot be harsh or oppressive, and that any relating to the keeping of animals cannot unreasonably withhold consent.
The latter expectation is reinforced by the former Fair Trading Minister’s statement, made in the context of the Strata Schemes Management Bill that’s currently before NSW Parliament, that (the Bill) would “…..bring some fairness back to strata living for pet owners and end the situation where they have to choose between giving up on their new homes or having a much-loved companion animal given away or put to sleep.”
Clearly the Government, and therefore its Agencies, has a predisposition to strata residents being able to keep their animals subject to conditions, so despite your dog’s long legs it’s in my opinion highly unlikely that any attempt by your O/C to “evict” it or your neighbour’s dog would be upheld by the NSW Civil and Administrative Tribunal (NCAT).
So just respond to the Notice as required, in the suggested terms, and politely suggest that your O/C takes account of the facts that you did previously advise the Strata Manager, of the established principles outlined here, that your occupancy is casual, and that you are prepared to take the matter to the NCAT if in your opinion the O/C acts unreasonably .
Al that said… I now just hope that you’re in NSW!
Wirihana: Don’t ring the victory bells too soon, don’t count your chickens before they hatch, etc.
Whale: I think you’ve overlooked clause B(1) of the By-Law.
… shall not keep nor cause nor permit the keeping of any animal (except a cat, a small dog, a small caged bird or fish kept in a secure aquarium) within a lot or the common property.
Clause B(2) merely defines the responsibilities of the owner if an animal allowed by clause B(1) is kept.
Promising to comply with clause B(2) won’t wash if Wirihana is already in breach of the pre-eminent clause B(1).
Also, the By-Law provided by Wirihana does not contain the “without the approval in writing of the owners corporation” clause. It’s no use asking for approval. Neither the EC nor the OC has the power to give it.
Neither does the By-Law contain the “not unreasonably withhold its approval” clause. I disagree that:
It’s a well accepted principle that a Plan’s (Special) By-Laws cannot be harsh or oppressive, and that any relating to the keeping of animals cannot unreasonably withhold consent.
In fact, I understand that the CCCT/NCAT will not hear a dispute based on “unreasonable refusal” unless the By-law does contain that clause.
That particular version of a Pets By-Law, which has been around for 10 or 20 years now, was the first attempt by “strata” to be pet-friendly. The Government caused the problem by being “ridiculously unprescriptive” and legislating “small dog” without defining what “small” meant. That phrase is still in the (current) model By-Laws.
However, that By-Law does sound dated, and I’m told that community feeling has moved on in 2 respects:
1) That large dogs are no more of a problem than small dogs.
2) That having to carry your pet while on common property is impracticable.
Wirihana again:
It never ceases to amaze me how diligent people are in searching for a loophole in the letter of a By-Law and how undiligent they are in complying with the spirit of the By-Law.
It is obvious that the owners don’t (or didn’t at the time) want large dogs around.
The By-Law is not one of the model By-Laws, so it cannot have been passed by default. It was specifically voted for by 75%+ of the owners. How many of them do you want to offend?
Having said all the above, you do have “rights”:
a) If you are the owner, you have the right to submit a better By-Law for special resolution at the next GM.
b) If you are visiting the owner, you have the right to lobby the owner to submit a better By-Law for special resolution at the next GM.
c) If you are visiting a tenant, you have the right to lobby the tenant to lobby the owner to submit a better By-Law for special resolution at the next GM.
d) You have the right to leave your dog at your country residence if there is someone else there to look after it.
Roo – I agree with your observations about people putting great efforts into finding loopholes in laws (generally) instead of putting minimal effort into just following them, but whilst I don’t expect that the CTTT undertook some dramatic change of direction on the day that its metamorphous into the NCAT occurred, do you really think that in the light of its former Minister’s media release and the directions taken in the Bill that’s now before State Cabinet that it would uphold any O/C’s decision to refuse permission to keep a dog merely because its legs are 100mm too long or solely because a SBL may not include an “unreasonable refusal” clause?
I don’t……. but that doesn’t mean that Wirihana should rely on that or that there aren’t other factors in play, but I do believe that he must attend this week’s General Meeting (G.M.)and put his case as strongly as possible.
Anyway as Wirihana foreshadowed, he’ll be back after the G.M.
Just playing devil’s advocate here, but I’m wondering on what grounds you would try to have the meeting declared invalid. It sounds like the chairman was nit-pickingly precise in addressing the rules (although I’m confused about which motion was allowed and which was struck out).
I don’t think you can get a meeting overturned just because it was badly conducted (there are no set standing orders for meetings, more’s the pity). If someone who should have been allowed to speak was silenced, or votes that should have been counted weren’t, that’s a different thing.
Having said that, the 24 hour rule on proxies only applies to large strata schemes. Does yours have 100 lots or more? If not, the proxies should have been counted and that would be your grounds for having the meeting overturned.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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