Question: BCM fees for processing a pet application were paid by all owners. A decision was made that the respective owner should bear any fees. Can the body corporate charge owners to process a pet application?
We have a standard by-law regarding pets. A VOC fee was levied by the body corporate manager (BCM) unless the matter could be decided at a usual meeting.
Historically, fees were paid by all owners. That was considered unfair. The general principle is more relevant than the amount involved. Some feel that all owners should not pay for something that is personal to one owner.
A decision was made that the respective owner should bear any fees.
A BCCM Common Ground article cites, “In the matter of Lenvilla (2018) QBCCMCmr 146, where a lot owner was charged a fee for a pet application to be considered by the committee, the adjudicator upheld that the lot owner should NOT be liable for this charge.”
The BCM at the time stated, “The $65 fee has been charged to the application as it is not a body corporate expense but an individual owner expense”.
The adjudicator determined that the applicant was asking for a decision from the committee as per a by-law and was not seeking to purchase a service or product from the BCM.
Could we incorporate “covering all fees/expenses” for personal applications into our by-laws? What costs are likely involved?
Answer: Conducting a VOC is very much part of the body corporate managing its affairs, regardless of whether it impacts one, two or two hundred individuals.
We have lost count of the number of times we have referenced ‘Lenvilla’ for clients and respectfully, you also need to give it more attention.
That is because while adjudicators’ orders are not precedent, this order concisely articulates that a by-law purporting to impose a monetary liability on an occupier will be invalid.
Moreover, this order clarifies the reality you must face, namely, the relationship between the body corporate and the body corporate manager. The body corporate manager has no direct relationship to an individual. A body corporate manager may be able to invoice the body corporate for the expense of holding a vote outside committee (VOC), subject to the terms of their management agreement, but it is not possible for the manager to invoice an individual – there is no scope either under legislation, or in the terms of an agreement, to do that.
You ask why all owners should pay for something that is personal to one owner. To be blunt, if you are asking that query, perhaps strata living is not for you because that is precisely how strata works. All owners contribute to the expenses the body corporate incurs in managing its affairs. Conducting a VOC is very much part of the body corporate managing its affairs, regardless of whether it impacts one, two or two hundred individuals.
We know that many strata managers, committees, owners, occupiers, and real estate agents disagree with the above logic (we’ve had that stated to us in blunt terms at countless events!), and would like to charge the individual. Put it this way: if you did, and it went to the Commissioner’s Office, it is very likely it would be determined in the same way as ‘Lenvilla’. At which point, you’d likely find the costs (legal costs, costs of distributing the application, as well as reputational costs for the committee in being seen to have embarked on a folly) exceeding the original cost of the VOC concerned.
Don’t do it, in other words.
This is general information only (except for the blunt bits) and not legal advice.
This post appears in Strata News #743.
Chris Irons
Strata Solve
E: chris@stratasolve.com.au
P: 0419 805 898
We have been denied our dog application, as the body corporate has stated no dogs over 10kg. But we have seen previous tenants in our block with a dog clearly over 10kg. What steps can be taken to turn this in our favour??
Hi Liam
The response to this question above plus others on the post should assist:
Question: Do apartments allow large dogs? If the Body Corporate refuses, where do I stand legally?
I’m living in an over 55s retirement village where there’s a body corporate. I also have disabilities and with recent changes to pet laws in QLD requested to obtain a dog to train as an assistance dog. I already have a cat, the village has a pet friendly policy.
The owner of my unit approved within two days. The manager of the village said she’d need to refer this to the body corporate and it to be discussed in their meeting tomorrow exactly 6 weeks to the day since my request.
I’m concerned that the body corporate will reject the request, but this is not a request for a pet, it’s a request to get an assistive ‘technology’ to help with my disability.
What recourse will I have in the event of a rejection? Also what happens if there’s no response after this meeting, is the six weeks up or does the count start from the meeting?
Hi Meg
Thanks for your question. This article from the Commissioner’s Office should assist:
QLD: Assistance animals and companion animals in a body corporate
All the best in resolving the matter
We moved into the Tramsheds here in Glebe from the country. Utter disaster … it is just noisy with dog barking. Bit better when people had to stay home, but during work hours if owners are not home you get barking. If a truck drives past or there is knocking, off they go. Feel like a nong running around to find which apartment which dog … spoke to the body corporate and a few minutes of barking every so often is not serious enough. Spoke to council and they said speak to the owner and then keep a diary. The odd dog fight in the park opposite. Early morning dog walkers – forget sleeping in. Big apartment blocks and dogs do not go well together. We’re only renters, but imagining buying one of these costly places and ending up with that? We’ll move away asap.
Dogs, cats, goats, worms…and what about pigs? There was a big fad some years ago in the USA where people began acquiring cute little porkers as pets. I know that some breeds can grow into enormous brutes, and there are some which you would not want to meet on a dark night on some country lane at the back of Woop Woop.
But there are other breeds more suited to decoration than farming economies. Plus, I am told that domesticated piggies can be very intelligent, easily house-trained, and have just the right temperament to be smoothly absorbed into your day-to-day family life as cherished pets.
There may be a problem with neighbors who, for religious of cultural reasons, may take offence at living next door to a pig- but this is just a matter of getting the right balance between their beliefs, your own property rights, and what you can or can’t do on common property.
So…is anyone aware of any issues re pet pigs?
Dogs, cats, goats…what about worm farms? I’ve heard from one friend who has lived in a hi-rise unit for several years now and keeps a worm farm on his balcony – but very, very discreetly. He prefers to dispose of his kitchen scraps in a responsible manner, rather than down the ‘gobbler’, but doesn’t want any problems.. There have never been any complaints from his neighbors, eg re smell or vermin, and certainly not about the noise as they busily but ever so quietly munch their way through the vegie scraps etc 24 hours a day. And the worm wee goes into the several flower pots he has placed in front of the farm, hiding it from nosey parkers and thus, so far, avoiding any worm-rustling.
The Q is…he doesn’t know if there is any by-law covering his worm farm, but doesn’t want to ask the Committee because it might cause trouble. So, he has never asked his BC for permission. His worms, either individually or collectively, are there as workers, ie garbage disposers and presumably are not covered by the pets by-law, and the farm is not causing any nuisance. Has anyone else had personal experiences with worm farms in hi-rises. Maybe some BCs, like many schools in QLD, have even set up BC Worm Farms on their own common pty areas, encouraging all owners to make a difference to the environment. It would be nice to know how the worm situation in QLD is going.
What if body corporate doesn’t give me a response to my pet application and just ignores it? What can I do?
We have recently purchased an apartment in caloundra, and we are just about to request permission for our dogs, they are scottish terriers, we have notices the bylaws state 1 dog and under 10kg, the issue is our full grown male is 15kw and the puppy will end up around 12kg, also requesting 2 dogs when bylaws say 1 dog on permission.
but we did notice that the building manager has 2 dogs so we never worried about the bylaw when we bought the property settles next week.
what are our options if the BC reject our request.
Cheers
Shane
Hi Shane
Frank Higginson, Hynes Legal has responded to your comment in the above article.
I have an apartment on the 13th floor and have approval for my two small dogs. However, our bylaws states I must only use the stairs and not allowed in the lift. We are trying to change this. What can be done against me if I break the bylaws and use the lift in the meantime?
Hi Janine
We have addressed a similar situation here:
Question: One of our Strata Title By-Laws seems unreasonable. Although we are allowed pets, the pet must not be walked or carried through the foyer. The alternative route is not suitable for me due to health reasons.
We recently purchased an apartment at the Gold Coast. The contract of sale had only one condition which was for pet approval. the condition was to our satisfaction, we received the approval letter from the body corporate committee – 3 votes to 0, the approval letter stated several reasonable conditions which we are happy to comply with. Unfortunately we can’t move straight into the property. In order to survive financially we engaged the services of a real estate agent to holiday let the apartment for a couple of months. We have advertised the apartment as “pet friendly”. I have received a very nasty phone call from the strata management company and have been confronted by an owner occupier. they have stated I must immediately stop renting the apartment as it is a residential block and immediately stop all pets. Is this correct? does the strata company have the right to stop us renting our apartment. the real estate agent is extremely strict on holiday makers with pets. The dog is not allowed to be left alone EVER! this is more strict than an owner occupier with a pet. The approval letter doesn’t. state the. sex, breed, age, colour, weight. of the pet – do we have any rights? do we have to stop holiday letting the apartment and say no to pets?? Thanks
Hi Celia
Chris Irons, Hynes Legal has responded to your question in the article above.
Conciliation is a total waste of time and money. A body corporate committees will most likely – having made the decision, refuse to compromise. It will hide behind “the committee decision” and “we have made this decision for the benefit of all owners”, so will not lose face by agreeing to a change. A body corporate committee does not always act “reasonably” , but rather enjoys having the power and control that comes with being on the committee. And frequently its a loan voice requesting someting, so has next to no chance of getting anywhere.
Hi Lesley
Chris Irons, Hynes Legal has responded to your comment on this post: QLD: Q&A Applying for Conciliation – Is it Worthwhile?
Courts have decided that by-laws cannot stop pet approval. Under body corporate act but they can be controlled through the enforcement of nuisance by-laws-in the complex in which I am concerned we require pet applications to be made and these can be approved by the Chairman and then confirmed at the next committee meeting
Hi Bob,
The below response has been provided by Chris Irons, Hynes Legal:
Just to clarify Bob that the court case everyone is talking about lately is in NSW, not Queensland. I should also clarify that decisions shouldn’t be made by a single committee member.
Your replies make it sound simple to remove pets that annoy. The process is far from simple. Any resident complaining about a constantly barking dog, for example, has to produce evidence of the dog barking and causing a nuisance. That evidence is recommended to comprise a written record of when the dog barks and how long for or, alternatively, record the periods when the dog is barking. Neither requirement is realistic. No one is going to stop doing whatever they are doing to pick up a pen or a recorder to record a dog’s barking. Having to do over a period of time e.g. two weeks is onerous and more so if a dog barks at night when everyone is in bed asleep. Dog barking is not confined to daytime.
Even if a By Law Breach Notice is issued there follows mediation so the chances of a barking dog being removed from the complex are low. Often the problem is not the dog but the Owner who does not exercise control over their dog. I suggest your response to Pets needs to be more realistic.
Hi Len,
The below response has been provided by Chris Irons, Hynes Legal:
I appreciate it’s not a straightforward task. That said, this is the process we have to work with at present and I know for a fact that adjudicators have ordered the removal of animals from a scheme. Remember also that other agencies (e.g., the RSPCA) might be called upon if there are concerns about the animal.
Your point about the issue being with the human, rather than the animal, is a fair one. Then again, how do regulate human behaviour? There are plenty of instances I encounter every day of humans demonstrating that they do not know how to properly manage an animal. What’s the answer – require all humans to be licensed to have a pet?
In relation to dog’s barking in a unit complex there needs to be a by-law or a motion or something that states if this does happen then the next step to take is to ensure the owner exercises their dog with a walk or a run in the park or swim at the beach for at least half an hour minimum on a daily basis. Dogs bark for a reason and the number one main reason is that they are bored through lack of exercise.
We are having our AGM at the end of October. One of the Motions is to possibly replace the Strata management Company. Is there not a “conflict of Interest” if the AGM is held in the Office of the Strata Management company and there are no observers to ensure the count of votes are correct and Proper. Shouldn’t this be held in a community Building with a few observers (Lot owners) to ensure validity??
Hi Edward,
We have responded to this question here: QLD: Q&A Steps to Engaging a Good Body Corporate Manager
We are in the process of buying an apartment on the Gold Coast.
The Body Corporate has agreed that we can have 2 small dogs.
Their by-laws say that we can enter, level the building with the dogs on a leash…restrained…carried or in a carrier.
We feel that that means we can take our dogs out of our apartment into the elevator and out thru the foyer or basement car park, but understand not pool or other common areas.
But the Strata Manager insists that all dogs are to be carried or in a carry cage on common property.
Why does the Strata Managers have the right to address this when it is not in the apartments by-laws?
Kind regards,
Roger
In Melbourne, new law on pets have been introduced. If the pet is a nuisance (ie, barks all hours of the night), it is the onus of the Owners Corporation to provide their reasoning and evidence to the Tribunal for the pet to be removed. The Tribunal may instead require that the dog be sent to training school.
Dogs are allowed on common property but must be on a leash at all times. If owner is shown to be irresponsible, ie, allowing dog off leash on common property, then this could be grounds for the Tribunal to approval Owners Corp application to disallow owner’s dog at property, as risk of dog biting someone is huge if owner is not taking said responsibility.
Current findings are that it is working well. More and more families with young children live in apartments and pets are a common source of satisfaction to the well being of tenants and owners.
I believe there is a misunderstanding that dog needs to be carried or housed in a carrier. If dog is on a leash, then this should meet the requirement that pet owner is in control of its dog.
https://www.abc.net.au/news/2016-09-06/tenants-union-welcomes-vcat-body-corporate-pet-ban-ruling/7818656
Good on you, wish I had the courage to do the same. We have a nasty group on sc and they will revenge and deny us and rig votes. Ones pets are ones kids.
What you have inside your property is nobody else’s business. If your pet is carried on common property, then they cannot do much about that either. Your pet must be well behaved and annoy no one. We had a similar problem, went to court and won. Even though the bylaw said no animals. The court ruled that times have changed, that the removal of pets should only occur, if the pet disturbed others, is neglected, or allowed to wander on common property. I would be saying to your neighbor, see you in court. You won’t.