- This topic has 21 replies, 9 voices, and was last updated 13 years, 3 months ago by .
-
Topic
-
Hi,
Q.1 I exchanged contracts on my strata unit on 4 Aug 2010 at which time I knew the ByLaw 16 was Option (A). The previous tenant in the unit I bought had a cat and a unit under me had a small dog. Unbeknown to me they had not been given approval for pets. 2 weeks before settlement (settlement was 7 Sept) I wrote to Strata requesting my 2 small house dogs (one is 13 and the other 8) be permitted – it was at this time that the Strata told me that ByLaws to the property had been “repealed” from Option A to Option C (no aminals at all). The new ByLaw was registered on 11 Aug 2010. Which By Law do I fall under?
Q2. Even though Option A had been in place for many years the Owners Corporation never allowed pets. In previous Minutes its even been stated that “this building has always had a no pets policy”. Ive searched through Strata Management’s communications between them and our Owners Corporation and in numerous emails the Strata has told the OC that they cannot
enforce a no pets policy under the Section 16 Option (A) by law. It appears to me that this OC have made their own ‘house rule’ about pets and have had done so for years.
The OC have formally informed me that I will be getting a Notice to Comply to get my dogs out and will be taking me to the CTTT. Im hoping I have a good chance of keeping them, depending on which ByLaw I fall under from date of exchange and changing ByLaws overlapping. My solicitors got a strata search dated 6 Aug stating the upcoming change of by law but stated “… We have no proof of registration …”, but they did not inform me of this.
Am I right to assume that our OC have taken it upon themselves to have their own house rule regarding having no pets allowed? A group of 8 or 9 people (2 of which dont even live in the building) out of a total of 30 units cannot run the building on their own opinions.
Sorry to rant on but theres a bit involved. What do you think my chances would be at CTTT? Regards Lyn
-
Replies
-
Hi Lyn,
This is a very common problem and we have recently been dealing with a very similar case.
Where an owners corporation is governed by model by-law 16 (Option A), an owners corporation must not reasonably withhold its approval. An owners corporation is obliged to consider any request for permission to keep an animal on its merits.
It is not open for an owners corporation to maintain contrary “policies” or “house rules”. Such “policies” have no effect and only registered by-laws can be enforced by the owners corporation.
If an amended by-law to prohibit any animals has been passed, you may be able to revoke the amendment under s157 of the Strata Schemes Management Act on the basis that it is unreasonable and oppressive. There is also High Court authority, which questions the validity of by-laws that are prohibitory rather than regulatory.
We hope that this helps. We know how important it is to be able to keep your pet on premise and we believe that a by-law prohibiting animals is invalid.
Kind regards,
Simone Balsara
Lawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500Hi Lyn,
If you entered into the scheme at the time when Option A was still operative then the owners corporation must reasonably consider your request to keep your pet on premise.
Steps in contesting the owners corporation's refusal –
1. You should consider is whether your original application to keep your pet gave a full description of the pet so that the owners corporation was given all the information required to consider your request.
2. If they continue to refuse your request, you can lodge a compulsory mediation application to negotiate a solution.
3. However where mediation is unsuccessful, you can lodge a CTTT application requesting an order of an Adjudicator under s150(4) to keep your pet. You can also request an order revoking the amendment to by-law 16 under s157.
There have been many similar cases in the CTTT which have been successful and a by-law that bans pets is arguably invalid and unreasonable.
Kind regards,
Simone Balsara
Lawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500Hi Lyn,
We understand how important it is for owners to be able to keep their pets, especially when they have done all that is reasonable to ensure that they are complying with the by-laws in their strata community.
Section 48 of the Strata Schemes Management Act 1996 outlines the steps to make an amendment effective –
(1) An amendment or repeal of a by-law or, a new by-law, has no force or effect until:
(a) the owners corporation has lodged a notification, in the form approved under the Real Property Act 1900 , in the Registrar-General’s office, and
(b) the Registrar-General has made an appropriate recording of the notification in the folio of the Register comprising the common property.
(2) A notification cannot be lodged in the Registrar-General’s office more than 2 years after the passing of the resolution for the amendment, repeal or new by-law.
Kind regards,
Simone Balsara
Lawyer
———————————-
TEYS Lawyers
The Strata Law Experts
02 9562 6500
Dear Pet Owners
We recently came across this link about a UWS Professor who is doing research on dogs in apartments which may be of interest to you –Kind regards,
Simone Balsara
Lawyer
———————————-
TEYS Lawyers
The Strata Law Experts
02 9562 6500simone@teyslawyers.com.au
https://www.teyslawyers.com.auHello everyone,
Same thing happen to me. I bought a flat in the Inner West. The by-laws are pets allowed on application (and permission cannot be unreasonably denied). I applied to have my small dog be allowed, provided all documents, certificates and even a dog VC with photo and letter of references saying my dog was quiet and well-behaved. But, no, the majority of the EC denied my request. After I told them off and threatened to go to the CTTT they decided to call an extraordinary GM and put in a motion to change the by-laws to pets not allowed.
It is just not cricket to change the by-laws like that after there is an owner with a pet in the property, no?
Well, I am not to worried. I got the numbers (at least for now) to keep the by-law as it is and I have applied for mediation and adjudication in the CTTT.
Does anyone have some experience with the CTTT and pets? What is their take? Are they pet-friendly??
Good luck for you all pet-friendly people!!!
At the first AGM for our complex we were advised that to include the by law that pets were allowed. We were told at the time by the SM that it would be too difficult to fight the no pet complex rule.
I believe the fact that we are a pet friendly complex is the reason why units sell on the first open day and for whatever the asking price is (or more)! New owners here say there were attracted by the fact that pets are welcome.
Other complexes should realise that it is a big selling point. As more and more people will be living in medium/high density in the future, pet friendly complex's may become like the “waterfront with own jetty” houses – highly desirable and more expensive!
Well said. 30 percent of Australian homes have pets in them. Why would you reduce potential purchasers by one-third? All you need is solid by-laws about the behaviousr of the pets (and their owners) and you're fine. Pets also bring owners together – i see it every day in my building.
Of course, for cultural or medical reasons, there are some people who can't tolerate living in the same buildings as any animals so there's no way we can let ALL buildings be pet friendly. But things are moving in the right direction.
And, in any case, I believe it's part of strata law that if a pet is causing an owner harm, physically through allergies or somesuch, the pet can be removed from the building.
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.
Simone said:
Hi Lyn,
………….. If an amended by-law to prohibit any animals has been passed, you may be able to revoke the amendment under s157 of the Strata Schemes Management Act on the basis that it is unreasonable and oppressive. There is also High Court authority, which questions the validity of by-laws that are prohibitory rather than regulatory. …………….
Kind regards,
Simone Balsara
Lawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500Is it possible to supply a link to the case or cite the case.
In 2002 an adjudicator suggested our SP change our by-law after the OC pursued a 70 year old woman who lived on her own on her 2 acre lot when that little old lady got a fox terrier. The little old lady got to keep her dog but the OC rejected the suggestion. In 2008 another adjudicator refused to repeal the same by-law and currently there is another round of dog wars going on.
My SP has a prohibitory by-law and the anti-dog element are constantly harassing people. They aren't shy either, young, old, people with disabilities, they don't care who they go after. The by-law continually turns the SP into a war zone.
This is the by-law below and what needs to be kept in mind is that this by-law applies in an 800 acre, rural, SP which has 115 lots that are roughly 2 acres each. The by-law is bizarre in such a setting.
Clause 13 Keeping of animals
The owners or occupiers of a lot shall be entitled to keep any animal upon their lot provided that:
(a) No dogs or cats shall be allowed upon any lot or the common property other than existing animals already duly approved as at 7/6/92.These animals may not be replaced.
(b) his or her animal is adequately restrained to prevent that animal entering or encroaching upon common property or any other lot, and
(c) no cat shall be allowed onto any lot or the common property unless it has been de-sexed, and
(d) the keeping of such animal is not otherwise prohibited by law.Purchaser’s should be aware that they are able to search the records of an OC themself. A good strata searcher knows the things to look for in the records, but will not know what is important to you as a purchaser unless you tell them.
There are some buildings that may be suited to being pet friendly and there are others where it would make no sense at all, and after all Strata is ‘the simplest form of democracy’.
Take for example the building that had a single lift and there was a resident on level 2 with a tiled floor, who had installed a floor to ceiling fish tank and was keeping a rotweiler. The majority of residents were over 55 and did not appreciate the over friendly large dog coming bounding out of the lift while they were waiting in the main entry foyer, let alone the poor owner below that had the pleasure of listening to the barking, thumping and scratching of the dog upstairs.
It is important for a community to have standards suitable for the community and uphold those standards for the majority.
Could it be suggested that in the instance posted above Lyn should request a motion be included on the agenda of the next general meeting or seek to convene a general meeting to change the by-law to what may best suite the community?
Dear Billin Ben
The Qld case of Mineralogy P/L v Body Corporate for the 'The Lakes Coolum [2002] QCA 550 discusses the validity of by-laws that are prohibitory rather than regulatory.
The decision refers to two High Court cases – Swan Hill v Bradbury and Brunswick v Stewart which also discuss the validity of prohibitory by-laws.
https://www.austlii.edu.au/au/cases/qld/QCA/2002/550.html
Simone Balsara
Lawyer
TEYS Lawyers, The Strata Law Experts
02 9562 6500 – 1300 TEYSLAWYERS
Suite 73, Lower Deck, Jones Bay Wharf
26-32 Pirrama Rd, Pyrmont NSW 2009
Hi All,Moving away from the legalities…..
For me as a pet owner and Committee Member in a pet friendly block we still have issues with dogs. They are generally noisy, smelly and their crap as in poop is pretty obvious especially when other lots look onto dog owning lots. What a nuisance! Cats are more discreet, unless of course they are allowed to wander.
I think the best way to deal with this issue is to allow the animal to reside in the lot. It will only take a week or so for other owners to determine if it has become a nuisance. AND THEY WILL COMPLAIN …as nothing is worse than a troublesome dog or cat. Then the animal can become removed as that, a nuisance!
We are all entitled to enjoy our lots without noise or nuisance wether it be from noise or fumes or being bailed up by a dog on exiting or entering our lots.
If the animal is quiet, well behaved,etc and the owner is acting responsibly by removing waste and carrying the animal on Common Property then there would reasonably be no avenue for complaint.
Cheers
Good points – well except for the anti-dog stuff. (Cats may be more discrete, but that's because they are pooping in your neighbours yard and not your own.)
Except that most pets need to be given longer than a week to settle into a new environment. A neighbour that complains to strata management after only a week isn't really being neighbourly. I find that in our pet friendly apartment block given a month most animals have settled down.
You would be better off talking directly to the pet owner in the initial stage particularly if it is about noise the pet is making while the owner is away. Most pet owners are happy to be given that kind of information as they don't want their pets in distress anymore than you do.
Simone said:
Dear Billin Ben
The Qld case of Mineralogy P/L v Body Corporate for the ‘The Lakes Coolum [2002] QCA 550 discusses the validity of by-laws that are prohibitory rather than regulatory.
The decision refers to two High Court cases – Swan Hill v Bradbury and Brunswick v Stewart which also discuss the validity of prohibitory by-laws.
https://www.austlii.edu.au/au/cases/qld/QCA/2002/550.html
Simone Balsara
Lawyer
TEYS Lawyers, The Strata Law Experts
02 9562 6500 – 1300 TEYSLAWYERS
Suite 73, Lower Deck, Jones Bay Wharf
26-32 Pirrama Rd, Pyrmont NSW 2009I have read the case and feel the decisions are saying by-laws are about regulation and not prohibition.
I am aware of the following:
“The scope and purpose of the Strata Schemes Management Act 1996 are clearly to do with regulating in a harmonious way the interests of those that live in the communal environment of a strata scheme.”
R Phillips: Truran v Owners Corporation SP 22049 [2001] NSWSSB 12 (19 November 2001)
(This was a matter relating to the keeping of pets.That makes me ask where does all that leave option C of by law 16 in the sch 2 model by-laws for residential strata shemes in the strata Regulations of 2010. The same prohibitory option appear inother model by-laws as well.
Option C Subject to section 49 (4) of the Act, an owner or occupier of a residential lot must not keep any animal on the lot or the common property.
The model by-laws offer a prohibitory by-law.
By offering a prohibitive option are the model by-law out of step with the expressed principle in the cases Simone references; i.e. that by-laws are about regulation?
- You must be logged in to reply to this topic.