lease vs by laws

My view is that so long as you agree to reasonable conditions you should be allowed to keep a pet within the complex. Typical conditions are:

1) Must not be allowed to enter common property (or other lots (cats)) except under control of owner (some adjudicators have ruled animals must be carried across or transported in a vehicle across common property) but I consider a leash is adequate.

2) Must not disturb other resident by causing a noise (Barking) or smell.

3) Must not attack of injure native wildlife.

If you agreed too and complied with these condition the strata would have little hope of banning your pet.

Let’s just lay out a few facts, to answer the question asked in the original posting, the lease does NOT over-ride by-laws – if anything it’s the other way round.  Landlords can’t just make up their own rules that allow their tenants to do things other residents can’t.

Once you have the permission of the landlord, you still have to get the permission of the Executive Committee and that has to be based on the by-laws that operate in that strata scheme (which may be different from other by-laws elsewhere).

If you have permission in writing or, at the very least, the rental agent admits that they did give you permission, then you are well placed.

The landlord has employed the rental agent to act on their behalf.  If the agent has done something the landlord didn’t want, then that’s something they need to sort out between themselves – it has nothing to do with you.

Have a look at Page 9 of the standard residential tenancy – it has has a couple of clauses related to the keeping of animals and any specific conditions that apply. By the way, your landlord/agent was breaking the law by not providing you with a copy of the by-laws and could be fined for not doing so.

Most by-laws that allow pets, stipulate that tenants must have their landlord’s permission, first and foremost. Then the Executive Committee decides whether or not it will give permission for the pet.

If the by-law is basically the ‘can’t unreasonably refuse permission …’ model and you have the permission of the landlord or agent IN WRITING then you have a very strong case if the dog is well-behaved.

One owner’s complaint is not sufficient reason to make refusal ‘reasonable’ – even if they are lawyers.  Some (but not all) lawyers who live in strata should be required to wear tee-shirts with “LAWYER” on the front, to save them having to say “listen, I’m a lawyer …” when they start bullying their neighbours.  Most lawyers who aren’t strata specialists know diddly about the intricacies of strata law.

Also, residents and Owners Corps have legal protection against nuisance animals regardless of whether or not they have permission.

The strata Act clearly states animals can be ordered out of strata schemes even when they comply with the by-laws (see Section 151 below).  For instance, a cat might be quiet, clean and never stray on to common property – but it’s very presence nearby might cause serious medical problems for someone who has an allergy. People take precedence over pets and medical conditions trump personal preferences.

I mention that clause in the Act because Executive Committees are often highly ignorant of their own by-laws, and even less informed about the protections they have under the strata Act.  As a result, they tend to react – usually overreact –  by jerk of knee. 

All that said, I don’t think anybody needs to be threatening anyone else with court action if it can be avoided. This could be resolved by mediation at Fair Trading but it seems to me the first step is to get the landlord or their agent to concede that the dog was allowed (the length of stay is irrelevant unless you are assuming it will be a nuisance).

If you get permission in writing (or already have it), apply to the Executive Committee for their permission under your strata scheme’s by-laws. Someone has written here that it’s up to the landlord to make that application – I don’t think that is the case since it’s very hard for the landlord to stipulate the nature of the animal concerned.

You get the permission, then you apply to the EC. Your mistake with ‘m’learned friend’ next door may be that you hadn’t applied for permission from the EC before you introduced the dog. 

If the landlord refuses to give permission, and you believe they have misled you, you can apply to Fair Trading for mediation and a possible CTTT order on those grounds – although it’s hard to prove if both the landlord and agent say permission wasn’t given and you have nothing in writing, or a witness who will testify to the fact. 

Verbal agreements, especially in rentals schemes, are as the late, great Sam Goldwyn said, “not worth the paper they’re written on.”

151   Order relating to animal kept in accordance with by-laws

(1)  An Adjudicator may make one of the following orders if the Adjudicator considers that an animal kept on a lot or the common property in accordance with the by-laws causes a nuisance or hazard to the owner or an occupier of another lot or unreasonably interferes with the use and enjoyment of another lot or of the common property:

(a)  an order that the person keeping the animal cause the animal to be removed from the parcel within a specified time, and to be kept away from the parcel,

(b)  an order that the person keeping the animal take, within a time specified in the order, such action so specified as, in the opinion of the Adjudicator, will terminate the nuisance, hazard or unreasonable interference.

(2)  An application for an order under this section may be made only by an owners corporation, lessor of a leasehold strata scheme, strata managing agent, an owner, any person having an estate or interest in a lot or an occupier of a lot.

@scotlandx said:
In our building the landlord always does it because they are the owner, but perhaps it might be easier here if the tenant does.

Actually, I can now see how that could work, since the landlord can only seek permission for a pet that is going to live there under the terms of the by-laws.  They could even reasonably ask for blanket approval for their unit under those terms.  In some schemes (older ones, especially),  ECs and strata managers refuse to have anything to do with the tenants and only deal with owners (even though tenants are now ‘interested parties’ under strata law). 

However, I also know of plenty of landlords who couldn’t be bothered to apply for permission for a pet on their tenants’ behalf.

CORRECTION:

Re, the clause being in the lease, I had been misreading the original post and have edited my comments to avoid confusion for anyone coming to this discussion late.  Apologies for any confusion I may have caused.  However I’ll leave my comments about verbal agreements in the other response as they have a general application. The landlord can’t change the terms of the lease without the tenant’s approval or until the lease is renewed (or not).

KEB, in your most recent post (I think… I’m not liking what I think is the ‘pin a post to the top’ thing) I refer you to the ‘Roos rant in the 6/4 post, one of the best things I’ve read in Flat Chat. Take it away Roo:

“Why is sorting out this mess the OC’s job?

“Particularly for tenants who may be on a 6 or 12 month lease.

“Calling meetings, writing minutes, appearing at the CTTT to justify their position, appearing again at the CTTT to seek an order for removal of unauthorised pets, etc, etc.

“EC members are people too! And entitled to the quiet enjoyment of their lot. I’m not referring to barking, I’m referring to other residents dumping their self-inflicted problems in their lap.

“BTW, fear of noise, smell, soilage and wandering are not the only reasons some schemes ban pets. What if there are other residents with allergies? What about other owners who bought into a scheme because it was pet-free by By-Law? How do you quantify their loss?

Thanks for telling it like it is, Roo!

Of course you’re quite right JimmyT.

And there’s another side to it. We recently got ourselves a brand new pet by-law about that’s so fluffy, friendly, conversational and easy-going it’s very hard to understand. (Hello Simone.) I don’t think anyone can be bothered reading it. Consequently we’ve become known as a ‘pet friendly’ building and real estate agents are letting places to dog and cat owners left right and centre without mentioning you DO actually need to ask for and be granted permission in writing. Also existing pets are supposed to have been documented.

So let me sign-off by referencing this other bit of ‘gold’ from one of Roo’s posts:

Ah, “unreasonably” and “occasionally”.

Words that are music to lawyers’ wallets.

OK, I’ve had a few whiskies, so let’s get started.

JT …

“There was no ban on pets”, but there was a ban on pets “arriving” without written permission (in the form of a By-Law).

KEB …

I’m still not sure whether you want the dog to visit “occasionally” as stated in your original post, or to stay permanently, which is the impression I get from your later posts.

If there are 3 units, there are 3 members of the OC, not the 2 you state.

The EC may well be comprised of 2 members.

Permission has to come from the OC, not the landlord, not the SM, not the EC (unless the OC choose not to override their decision).

You have the landlord over a barrel with the extra clause written into the lease (but that’s not sufficient permission).

What about the 3rd owner? Have you talked to them?

Has the OC already held an EGM to decide to amend the By-Law, or is that still in the future? It may not pass.

You can’t be evicted by the landlord, because you haven’t breached the lease (with its extra clause).

You can’t be evicted by the OC. Ever.

The OC can take you to the CTTT for breaching a By-Law, either the old one requring permission, or the new one banning pets altogether.

Or you could take the OC to the CTTT, on the grounds of “unreasonable” refusal, or that they changed the By-Laws during your tenancy.

How long is your lease?

CCB …

Yes, that’s one disadvantage of being “pet friendly”. Give a Leasing Agent 2.54 cm, and they’ll take 1.609344 kilometres. As JT says elsewhere, they are “paragons” of something or other. I think “paragon” is a  term for a geometric figure which has at least two faces.

Anyways, the Strata Review will probably solve all our problems. I understand they’re going to make pets compulsory. And they’ll probably ban smoking on balconies, so you’ll have to do it inside with the kids. Which will only leave one problem, pets who smoke, like that monkey on Big Bang.