A Qld lot owner is questioning whether a cat enclosure on the balcony is a breach of the Appearance of Lot bylaw. Todd Garsden, Hynes Legal provides the following response.
Question: We put a cat enclosure on our balcony and received a breach notice under the Appearance of Lot bylaw. Isn’t a cat enclosure just like outdoor furniture? Why is no-one else in breach?
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I have a question as a tenant in a multi-unit complex. Our units are highly visible to the street and other units due to the layout. Several of them have glass fronts to the balconies and the bottom floor has open staircases up to the apartment doors. Due to this layout, every balcony has furniture and other items visible from the street and other lots. We put a cat enclosure on our balcony and received a breach notice under the following bylaw:
Appearance of Lot
An occupier must not hang any washing, towel, bedding, clothing or other articles or display any sign, advertisement, placard, banner, pamphlet or like on any part of its Lot in such a way as to be visible from another Lot, the Common Property or outside the Scheme Land, except with the consent in writing of the Body Corporate Committee.
We requested permission to keep the cat enclosure but I’m not sure where in that bylaw we are actually in breach and we’re anticipating being denied.
If we are in breach because we have outdoor furniture then due to the design of the units every single property is in breach. Do we have redress under fair application (nobody else seems to have been given this notice), that outdoor furniture isn’t covered or the fact that the bylaw is not feasible practically if applied in that manner?
Answer: The committee can’t selectively enforce the by-laws as it would be unreasonable to single out particular owners.
All occupiers need to comply with the by-laws and the committee must act reasonably in enforcing any breaches – so the committee can’t selectively enforce the by-laws as it would be unreasonable to single out particular owners.
So the committee must either enforce all breaches (which is their obligation) or take the same approach to all breaches.
Depending on the size and visibility a cat enclosure would be capable of breaching that by-law.
This post appears in Strata News #203.
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Todd Garsden
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au
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In the spirit of negotiation, perhaps the Committee instead of providing a blanket NO could provide another solution.
If the problem is that it is too visible from the street, perhaps it could be smaller which wouldn’t detract from the outward appearance of the property.
I would not know of any other plausible reason for the negative response, other than that it is too big and may not be attractive to would-be investors.
I would be interested to know if there was a mediation body out there which can resolve these disputes without going to a tribunal to challenge the by-law.
Hi LVC
We have received the following reply back from Frank Higginson, Hynes Legal:
It all comes back to reasonableness. Rather the pushing the committee to put forward a solution, you should. If that solution is reasonable in all of the circumstances (which is the nebulous grey area us lawyers usually play in) they cannot refuse it. If they do, that is where the Commissioner’s office comes in. You can freecall them on 1800 060 119 to have a chat too if you want. Their information service is designed for exactly your type of situation.