Queensland Government takes a clear position on pets in bodies corporate
Whether you like or dislike pets or think they should or should not be part of strata, the fact remains that the Queensland Government has now taken a clear position on the issue – and that means you need to deal with it!
In my day to day practice, we are still advising on pets and the law has been incredibly well settled for a long time. The difference now is that the government is being very prescriptive about pets – until now, it has been the interpretation of what is oppressive or unreasonable.
The Amendment Bill has basically codified, in a sense, what adjudicators have been deciding for the last 15-20 years. So, instead of relying on cases, we have legislation. The position is now very clear that by-laws cannot prohibit pets, or in other words, a prohibitory pet by-law is invalid. That’s now the default starting point.
A by-law can still require permission to be sought, and that’s where things will get interesting. We start from the default position that prohibitory pet by-laws are a no-go, then someone can still be required to apply for and seek permission. The grounds on which the committee can refuse permission are very, very limited. It’s fair to say this has been drafted in a way that is consistent with Residential Tenancies legislation.
Some examples of grounds on which a committee can reasonably refuse permission for pets are interesting. For example, if the scheme land is used as a refuge for native fauna or if native fauna might visit scheme land. Schemes that abut a national park, or are on the coast or in the hinterlands, need to be mindful of this ground. Another possible ground for refusing permission for the pet is that it is inconsistent with local government law. This one has always been in the background, but this has now been made explicit.
You cannot stipulate the size and number of pets. The legislation specifically says a by-law can not do this. We’ve moved away from by-laws stipulating arbitrary 10 kilo weight limits, and we’re also now away from the days of by-laws saying one dog or one cat and all that sort of stuff.
We think best practice for committees is that pet by-laws should not try to detail all the conditions that body corporate might impose. You want flexibility. If you’ve got a no pet by-law, it was always invalid, but now it’s legislatively invalid — end of story. If you haven’t got by-laws relating to pets, then it’s a free for all.
What a body corporate must have is a by-law that simply says before anyone keeps a pet in their lot, then they need to seek the consent of the committee. The committee can then impose reasonable conditions around that. You don’t want to put all conditions in the by-law, because you never know what circumstances might present themselves that you need to tweak, and you don’t want to be hamstrung by being tied to something that’s actually in your by-laws that is not relevant.
All bodies corporate should start making sure their by-laws are up to date and reviewed because that will be a crucial part of this process. While the government has not instructed bodies corporate to review their by-laws, it seems like a no brainer that they should.
A couple of other quick things to note: Schedule Four in the Act for by-laws, sometimes referred to as the default by-laws, has also been amended in this process to include some of those very regular conditions for pet approvals. Interestingly, those ‘default’ conditions do not include desexing microchipping, vaccination, or local authority registration. These are all (probably!) reasonable.
Adjudicators retain the ability to order the removal of a pet if it is not properly approved or it is causing a nuisance. For everybody out there thinking that this is carte blanche on pets: no, not quite. It certainly is a much more expansive way of looking at the issue, but it is still not a free for all.
Essentially where the government has gotten to is that pets are a big part of society today and people in strata should have the same right to have them for mental health issues reasons and otherwise, as people in houses do.
One final point about pets: the processes for approval for tenants to have a pet and then the body corporate to approve a pet remain two separate processes. Sometimes, there’s confusion that one is the same as the other. They are quite different and have different timeframes and consequences.
Moving forward, be alert yet not alarmed about this change. If you are part of a committee and you know there are issues with pets, or likely to be, then maybe start thinking about how these changes will impact your scheme. The same applies for lot owners, tenants (aka occupiers), onsite managers and strata managers.
This post appears in the September 2023 edition of The QLD Strata Magazine.
Chris Irons
Strata Solve
E: chris@stratasolve.com.au
P: 0419 805 898
Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500
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