QLD: Q&A Seeking Pet Approval from Your Body Corporate?

In 2020, Adjudicator Sutherland had to decide whether a by-law that required all cats and dogs to be de-sexed before being permitted to stay within a community titles scheme was valid or not. The by-law was worded such that the committee could not give approval for the pet if it was a dog or cat and was not de-sexed.

The learned Adjudicator found that the by-law granted the committee discretion on whether to approve a pet or not but locked down the committee’s discretion about giving approval too far. The restriction on the committee’s discretion meant that the by-law, as it was drafted, was not reasonably proportionate and was contrary to the interests of lot owners and occupiers.

As for the requirement to de-sex cats and dogs, Adjudicator Sutherland referred to material published by the RSPCA on the benefits and considerations of de-sexing, including the earliest that the procedure could or should be carried out. The by-law was not flexible enough to enable the committee to make necessary exceptions for puppies or kittens that were too young to be de-sexed (generally), or for animals of valuable breed (specifically).

It’s important to note that the learned Adjudicator was considering a by-law under the Building Units and Group Titles Act 1980 and was, therefore, sitting as a Referee. While there are similar principles in the Body Corporate and Community Management Act 1997 (BCCM Act), the Adjudicator’s reasoning does not perfectly translate. Accordingly, care should be taken when drafting a pet by-law or seeking to enforce one that requires the de-sexing of pets. See Marina Residences [2020] QBCCMCmr 648

When the new section 169B of the BCCM Act commences sometime this year, the position above will change. The new tests will include whether a requirement to de-sex is a reasonable and appropriate condition and whether the refusal to approve on the basis that an animal is not de-sexed is defensible under one of 8 specific defences; see section 169B(6) here Body Corporate and Community Management and Other Legislation Amendment Act 2023 – Queensland Legislation – Queensland Government.

If regulation of pets in your scheme is an issue, it’s important to take advice early about how the 2023 amending Act affects current pet by-laws.

Michael Kleinschmidt Bugden Allen Graham Lawyers E: michael.kleinschmidt@bagl.com.au P: 07 5406 1280

March 2024 edition of The QLD Strata Magazine.

Question: If a body corporate cannot ban pets from residential life except in exceptional circumstances, what does ‘residential life’ mean? Can we stop short term guests from bringing pets?

In a recent article, Frank Higginson advised that under the new rules, “Bodies corporate will not be able to ban pets in a community title scheme, except in special circumstances”. Further, “This guidance seems to make clear that pets are part of residential life – in whatever type of structure you live in”.

What exactly does “residential life” mean? About a third of our apartments are in a letting pool. Can the body corporate insist short-term holiday guests are not allowed to bring pets, appropriately registered assistance animals being the exception?

Answer: That remains the prerogative of the lot owner in consultation with the letting agent, after which the body corporate might need to get involved.

The powers of a body corporate with respect to pets will soon be that set out in this s. 169B – Queensland Legislation – Insertion of new ss 169A and 169B. That doesn’t extend to a prohibition on pets because the unit may be holiday let – that remains the prerogative of the lot owner in consultation with the letting agent to decide whether they want to rent their unit to holidays guests with a pet. Holidays tenancies are not captured by the obligations with respect to pets in the Residential Tenancies and Rooming Accommodation Act – which governs permanent rentals. If a lot owner does want a holiday guest to be able to keep a pet, then they need to go through the approval process with the body corporate first, though.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #683.

Question: A tenant has requested permission to look after a friend’s pet. Are the body corporate committee obligated by legislation to approve requests for a visiting pet?

A tenant has requested permission to look after a friend’s pet. Are the body corporate committee obligated by legislation to approve requests for a visiting pet? What ‘acting reasonably’ guidelines can the committee use when considering visiting pet applications from owners and tenants? Can a lot owner refuse/not approve a tenant’s request for a visiting pet?

Answer: An occupier is asking for permission to keep a pet, and the body corporate has to make a decision on that request.

It is subject to the by-laws of your scheme as to what approvals are needed from a body corporate perspective. If your body corporate has no pet by-laws at all, for example, then no approvals are needed. If your by-laws prohibit pets entirely, then no approval can be given, although that by-law is going to be invalid. We don’t think the permanency of the occupation of the lot by the pet matters. What matters is that an occupier is asking for permission to keep a pet, and the body corporate has to make a decision on that request.

An entirely different set of rules applies from the tenancy side of things. You are best to consult with the Residential Tenancies Authority for further details about that.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the December 2023 edition of The QLD Strata Magazine.

Question: We are a four unit body corporate in Cairns. A tenant has the owner’s agreement/support for a small pet. If the vote is three in favour of the pet and one against, is a majority sufficient or does the result need to be unanimous for the pet to be allowed in the complex?

Answer: From a voting perspective, it is generally considered that reasonably submitted pet applications cannot be denied.

Approval of a pet is usually made by a majority decision on the committee. In your complex, if all four units are part of the decision making process, a vote of three to one in favour is sufficient. If one unit doesn’t vote, two to one is sufficient. If the votes are equal, the motion is defeated. It’s worth checking your by-laws to see if there are any conditions in a pet by-law that might affect this, but this is the standard procedure.

From a voting perspective, it is generally considered that reasonably submitted pet applications cannot be denied. The state government has proposed bringing in legislation to this effect, and it is expected to be introduced in the next twelve months. This legislation will formalise the status quo regarding approvals.

However, within that context, it should also be expected that owners who want pets submit credible application forms showing that their pet is suitable for body corporate living and acknowledging that they are responsible for the animal’s behaviour. Body corporate schemes can also consider bringing in by-laws around pet control to help limit any issues.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the November 2023 edition of The QLD Strata Magazine.

Question: To preserve wildlife, our body corporate has a Council covenant for no cats and dogs. Is it lawful to request evidence of an assistance dog when applying for approval? Can we restrict where approved assistance dogs can go on common property?

Our body corporate is a park-like estate with private individual lots. Seventy per cent of the property is open space. We have a Council covenant for no cats and dogs to preserve wildlife. Fifty percent of the property is designated a conservation area on our DA. We have old by-laws that refer to guide dogs and wildlife rights.

With the loosening of laws and common law on “assistance animals” for people with a disability and court decisions relating to the Disability Discrimination Act, we find owners are bringing dogs onto the property and walking them with no badge or jacket on common property. Many owners are upset as we consider the property a wildlife sanctuary.

Our PBC requests owners provide evidence before bringing an assistance dog onto the property. Is that lawful? When on common property, can we insist identification be displayed? Can we restrict access to certain common property areas (e.g. our conservation area trails)? Can we request these dogs are not walked on common property at all? We have kangaroos, wallabies and other wildlife that live here and are affected by the presence of dogs.

Answer: Bodies corporate regulating the use of common property to ensure compliance with by-laws or other applicable laws can request evidence from owners that the dog and themselves are properly registered.

An Assistance Dog is the generic term for a guide, hearing or service dog that has undergone exclusive training to perform specific tasks that would assist a person with a disability, resulting in a better quality of life and gained independence. Assistance dogs differ from therapy, emotional support or companion dogs (Companion Dogs) as they are required to undertake a Public Access Test (PAT) in order to be qualified. The PAT (example found here: Queensland Government: Disability services) is the minimum standard in Australia for a dog to qualify as an assistance dog and includes certification of the dog handler.

Handlers of assistance dogs may be requested by a person to provide their Handler Identity Card in accordance with the identification procedure for an assistance dog. In this instance, bodies corporate who are regulating the use of common property to ensure compliance with by-laws or other applicable laws can request evidence from owners that the dog and themselves are properly registered. To comply with the identification procedure, handlers must have their valid Handler Identity Card clearly displayed or have it available for inspection upon request while ensuring the dog is wearing its identifying harness/coat. For guide dogs, the harness/coat is yellow/white. For assistance dogs, the harness/coat is blue/white.

Owners who comply with the identification procedure (ID card and harness/coat) cannot be refused access to common property in accordance with the Anti-Discrimination Act 1991 (ADA). The Body Corporate and Community Management Act 1997 also provides that a person with a disability (under the Guide, Hearing and Assistance Dogs Act 2009) who has a right to be on a lot or the common property, has a right to be accompanied by their assistance dog. If such a person is the owner or occupier of a lot in the scheme, they may keep their assistant dog with them in their lot, despite what any by-law says to the contrary.

It is important to note that while companion dogs and their handlers do not enjoy these legal protections, unlawful discrimination can have serious consequences. For example, there are circumstances in which a companion dog who has not been “certified” or “trained” as an assistance dog can still be deemed to assist an individual with an impairment where, without the allowance of the dog, the individual is not granted the same right as another. This can be a breach of the ADA; see Jackson v Ocean Blue Queensland Pty Ltd [2020] QCAT 23

It is easy to see this is a difficult area, even without the added complication of development approvals and covenants! There is also an increase in the willingness of parties alleging discrimination to litigate. In a case such as yours, I would strongly recommend obtaining legal advice, with a view to establishing protocols that are then (sign) posted and published, the subject of owner/occupier education and then enforced.

Michael Kleinschmidt Bugden Allen Graham Lawyers E: michael.kleinschmidt@bagl.com.au P: 07 5406 1280

Evelyn Hearn Bugden Allen Graham Lawyers E: evelyn@bagl.com.au P: 07 5406 1280

This post appears in Strata News #664.

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.

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

This post appears in the September 2023 edition of The QLD Strata Magazine.

Question: Can a body corporate require you to use the basement for entry/exit of the scheme when accompanied by an animal?

Answer: Yes, provided access via the basement is safe and reasonably practical.

It is not uncommon for bodies corporate to impose conditions on where animals can go on common property, such as requiring animals to be brought onto and taken off the scheme via the basement. The intended purpose of such conditions is generally to reduce unwanted contact with occupiers and avoid adverse impacts on the common property.

However, bodies corporate and committees have a duty to act reasonably at all times, and by-laws must not be unreasonable or oppressive (s.94(2), 100(5) and 180(7) of the Body Corporate and Community Management Act 1997). For example, in Grosvenor [2022] QBCCMCmr 305, the Adjudicator considered a by-law that required occupiers to use the basement for entry/exit of the scheme when accompanied by an animal. In this case, the Adjudicator relevantly stated:

“[37] A condition such as this would not be invalid simply because it was not the most convenient or desirable means of access for a pet owner. I also do not consider arguments that the basement access is not considered necessary, and that the foyer can be used by animals without incident, is a basis for an adjudicator to interfere with a by-law that the body corporate has chosen to record. However, if the body corporate is requiring pet owners to use a means of access to the scheme that is not safe or reasonably practical, arguably a by-law requiring that access would be oppressive or unreasonable.

[42] … there may be times and circumstances in which the basement and the driveway may not be a feasible or practical means of entering and exiting the scheme generally or for particular pet owners. As such, there may be times and circumstances where it would not be reasonable for the body corporate to require only basement access. For example, in instances of extreme weather or during a fire evacuation, or if a particular pet owner has temporary or permanent mobility issues, potentially the insistence of the use of the basement and driveway could be unreasonable.”

Accordingly, if bodies corporate wish to impose a condition requiring animals to be brought onto or taken off the scheme via the basement, the specific circumstances must be carefully considered, including safety and practicality of access and any exceptional circumstances.

Alanna Hill Mathews Hunt Legal E: alanna.hill@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in the June 2023 edition of The QLD Strata Magazine.

Question: We moved into our new apartment six months ago with two cats, even though we knew the body corporate had a rule about one pet per apartment. We’ve received a breach notice for not complying with the rules. What do we do now?

We purchased our apartment about six months ago. At the time of purchase, we knew the body corporate had a rule that no more than one pet was allow. We have two cats. One cat is my daughter’s support animal and both cats stay inside the apartment at all times.

When purchasing, the real estate agents assured us that two pets would not be an issue as many other lot owners had more than one pet.

We have received a notice from the body corporate advising us we are not complying with the rules. How do we make this right?

Answer: If you haven’t made an application, submit one.

All purchasers should check the by-laws before moving in. It is not sufficient to rely on information from your sales agent.

Had you done so, you would presumably have seen a by-law around the housing of pets at the property and could have made an application in advance.

If you haven’t made an application or the body corporate has a by-law that states only one pet is allowed, it is not strange that the body corporate is enforcing its by-laws. That is what it is supposed to do.

If you haven’t made an application, submit one. If you have made an application and it was denied, you might ask whether the grounds for denying the application are reasonable and valid.

Generally, the law has been in favour of allowing pets in body corporates and most take the view that it is difficult to deny reasonable pet applications. The Queensland Government has recently announced that it plans to introduce reforms to make it easier to allow pet ownership, so the general tide of opinion is that pets are permitted. We don’t have the full details of the government’s plans yet, but it is possible that any legislation they bring in could make the arguments here moot in a fairly short period of time.

In this case, it seems that the body corporate would permit you to have one cat but not two. Is that reasonable? It may be a stretch, especially if you can show the cats are indoors only. You might want to refer to your local council rules. Here on the Gold Coast, the council require you to get a permit for more than two cats. You might want to review what your council says and cite that as a standard of reasonability.

After that, you could challenge any decision of the body corporate via the Commissioner’s Office. Or wait until the body corporate takes you to court and respond then. Either way, seeking mediation and outside adjudication on the situation seems sensible.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the April 2023 edition of The QLD Strata Magazine.

Question: An owner regularly pet sits more than one dog at a time. It’s unnerving to not know what dogs will be on common property. Do residents need approval to have visiting dogs at their unit?

Can an owner / committee member pet sit dogs for friends? They bring large dogs into the complex to stay overnight. They also have friends who come over with dogs and stay for hours. Sometimes there can be up to four dogs in their apartment. No request has even been made to the body corporate for approval.

I love dogs and I am happy for residents to have a pet, but I find it unnerving if you don’t know what dogs will be in the stairwell or in common areas.

We are in a small block of units in a building format plan. We by-laws state that approval must be granted to keep a pet. Given all the changes to the keeping of animals in Queensland body corporate properties, where do we now stand ?

Answer: Review your by-laws. Don’t just look at the pet by-law, also look at other clauses such as noise or damage to common property.

The owner could be in breach of the by-laws or the act, so you might want to consider the ways that could be occurring and then take follow up action.

First you need to review your by-laws. Don’t just look at the pet by-law, also look at other clauses such as noise or damage to common property. Having a friend’s pet attend the property might not be a breach in and of itself, but there can be other clauses that apply.

Then, you might want to have a chat with other committee members or the owner themselves depending on your relationship. You mention that yours is a small scheme, so it can be important to maintain neighbourly relations in ways that may not apply to the distance of a larger scheme. Perhaps there is a way to have a conversation and find some middle ground that can satisfy all parties. It may be that your neighbour doesn’t realise they are causing you a disturbance and it might just be that the fix is simply to point this out.

Failing that, you can request the body corporate issue a breach of by-law notice against the owner or you can take individual action as an owner. If the owner doesn’t make changes it may be that you need to proceed the matter to the Commissioner’s office.

A further consideration is whether the owner is helping friends or running a business. If you thought it was the latter, perhaps you could alert council and they might get involved. Some councils require special conditions for owners who want to house more than two pets and that restriction could be considered here.

If your by-laws don’t really give you the answer, they may need an update. As it is not really possible to reject reasonable pet applications, many schemes are adapting their by-laws to better regulate how pets behave in body corporates. This can include by-laws that look at when they should be on leads or if they should be carried. Speak to a strata solicitor to get some help with drafting a new by-law.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the December 2022 edition of The QLD Strata Magazine.

Question: We applied to have our son and his dog visit us at our unit. This request was denied. Are we entitled to be given a ‘reasonable’ reason for the decision other than the committee not liking animals?

We applied to have our son and his dog visit us at our unit. This request was denied:

“The xxxxxx Corporate Committee has voted on your request to have your son’s pet visit the complex, and the motion was not passed, so you cannot have the dog visit.”

I asked for a valid reason as to why and we have received no response.

As an owner, are we entitled to be given a ‘reasonable’ reason for the decision other than the committee not liking animals?

Answer: The committee has an obligation to act reasonably however is not obliged to provide detailed reason for its decision.

The committee:

has an obligation to act reasonably; however

is not obliged to provide detailed reason for its decision.

In Riverbend Gardens [2016] QBCCMCmr 507 the adjudicator relevantly provided:

[36] The three Dorney decisions discussed above say that unless there is a statutory obligation to do so (which does not exist in the body corporate legislation), there is no obligation on a person to advance specific grounds or reasons for their decision at the time of the decision. Although it may be unreasonable to give no explanation of a decision, I agree a body corporate does not necessarily have an obligation to give the applicant comprehensive grounds for its decision.

If any dispute resolution application is made, ultimately the committee would need to justify its decision in front of an adjudicator. Without a valid reason – an application would be successful in overturning the committee’s decision.

It may be worthwhile pointing this out to the committee in an effort to avoid the need for such an application to extract details of the reasons for the decision.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the July 2022 edition of The QLD Strata Magazine.

Question: I’ve read that goats are increasingly becoming household pets! Given the current rulings on “pets” in units, can we expect dog rules will percolate to include billy goats or am I just starting to bleat?

Answer: Animal by-laws should, ideally, be animal-neutral.

I assume you’re referring to the goat that’s recently been the subject of media attention in Melbourne. I certainly don’t wish to ‘lock horns’ with you on this topic (see what I did there?), so instead, I will say that animal by-laws should, ideally, be animal-neutral: approval processes specified for animals, rather than breeds or types of animals. Any approved goat would be subject to by-laws and nuisance provisions, which would mean excessive bleating would have to be treated the same as excess barking. I’m sure we’ve all ‘herd’ such things…

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #517.

Question: We have just purchased an apartment with bylaws stating one dog is allowed but it must be under 10 kg. We have two dogs and they are both larger than 10kg. What if the Body Corporate rejects our request for permission for our two dogs?

We have recently purchased an apartment in Caloundra and we are just about to request permission for our dogs. We have two Scottish Terriers. The bylaws state we are allowed only 1 dog and it must be under 10kg. Our fully grown male is 15kg and the puppy will end up being around 12kg. How do we go about requesting permission when we have one additional dog and they are both over the required weight?

We notice the building manager has two dogs, so we weren’t concerned about the bylaw when we purchased. The property settles next week.

What are our options if the Body Corporate rejects our request for permission for our two dogs?

Answer: If there is a refusal, it probably comes more from ignorance than intent.

That’s what the Commissioner’s Office is for. Ideally though, if there is a refusal, it probably comes more from ignorance than intent, so it might be best to do a little educating of the committee as part of the application for consent in the nicest possible way.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #469.

Question: We recently purchased an apartment and receive approval for a pet. We’ve decided to short term let for a few months and have advertised it as “pet friendly”. The Strata Manager has demanded we stop short term letting and stated there are to be no unknown pets at the property. Can they do this?

We recently purchased an apartment at the Gold Coast. The contract of sale had pet approval. Unfortunately, we can’t move straight into so we have decided to holiday let the apartment for a couple of months. We advertised the apartment as “pet friendly”.

The strata management company is demanding we immediately stop renting the apartment. They are concerned about the short term letting and unknown pets coming to the property. Does the strata company have the right to stop us renting our apartment?

Our pet approval letter doesn’t state the sex, breed, age, colour, the weight of the pet. Why does it matter which pet it is? Do we have to stop holiday letting the apartment and say no to pets?

Answer: Pet approval is not usually permission given to ‘any’ animal at any time.

Typically, permission to keep an animal on the scheme is given specific to the animal, i.e., it’s not usually permission given to ‘any’ animal at any time. Things such as the name and the breed of the animal would be noted in the permission. Did you initial permission give you blanket animal approval? You will need to double check that.

Based on what you’ve said, it appears you were given permission for ‘your’ animal and now you have a situation where you want permission for potentially any animal brought by a guest who is short-term letting. That is a different matter and would largely depend on the applicable by-laws. If you are advertising your lot as ‘pet friendly’ and the permissions have not been granted for animals in that context, you (and your guests) may be in breach. You may also find yourself in breach of consumer laws by advertising a property as something which it is not.

The claims of the person who ‘confronted’ you that you must immediately stop renting the apartment as it is ‘residential’ may have more to do with how your apartment is zoned by local council rather than an issue with animals. That said, you will need to consult your by-laws and I recommend you seek legal advice, as there are several issues at play here.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #450.

Question: One of my tenants has been denied approval for her dog as it is not desexed. Is this reasonable?

One of my tenants has been denied approval for her dog as it is not desexed.

Considering all other conditions have been met could this be seen to be insufficient to deny approval? Other dogs have been allowed in the building being well over 10kg as dictated in the by-laws, why would this stipulation have more weight than the size requirement?

Answer: It will be up to the occupier to effectively argue that that is an unreasonable refusal.

I can’t speak for why that particular criteria would have any more significance than others.

I take it from your email that your tenant is not interested in having her dog desexed? Assuming that is the case, it will be up to the tenant – known as an occupier under body corporate legislation – to effectively argue that that is an unreasonable refusal. It may well be that your tenant can argue that as she has complied with every other requirement, refusal simply on this is unfair. On the flip side, though, desexing an animal is both a commonplace occurrence and a reasonably common condition in allowing an animal to stay on the scheme. So your tenant may also want to consider if by not having the dog desexed, she herself is being ‘unreasonable’.

In my experience as Commissioner, the vast majority of animals that were part of disputes either were already desexed or would be desexed as part of conditions agreed to be the owner or occupier.

Either way, your tenant’s option now is to dispute the issue through my former Office, in which conciliation would be the likely first step.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #422.

Question: How does a Body Corporate manage visiting pets? Is it usual to require permission prior to visiting? Can we enforce a time limit?

Can you advise or direct me to the legislation (if any), which shows how a Body Corporate can manage visiting pets?

Is it usual to require permission prior to visiting? Can visiting pets stay for a specified time period e.g. 1 hour, 1 day or 1 week etc?

Can a Body Corporate actually refuse visiting pets. There is an approval process for owner pets, just wondering about visitor pets.

Answer: Pet management is usually regulated by a strata scheme’s by-laws.

Pet management is usually regulated by a strata scheme’s by-laws. These will differ from site to site so you need to review the laws for your complex and determine how to approach the issue on that basis. Whatever rules you have in place a good first step would be to raise the issue at a meeting to review the current by-laws and how they are being applied. If the existing by-laws don’t provide the coverage required you could look at changing them to suit the needs of your scheme.

It is possible for by-laws to have restrictions on visitor’s pets. For example, the model by-laws for buildings built after 1997 state that occupiers must not permit an invitee to bring or keep an animal on the lot or common property without written permission from the body corporate. How such a law gets applied in actuality will likely depend on the overall pet-friendliness of the building. Is it really practical to receive and process an application for a visitor with a dog to visit the site for an hour? At the least, visiting pets would be expected to adhere to the same rules regulating resident pets. Putting up clear signage about pet behaviour may help people understand the rules and expectations.

If a visiting pet is causing a nuisance then it is possible that the occupier would be in breach of not just any by-laws relating specifically to pets but also those referring to noise, behaviour of invitees or damage to the common property. The legislation also prohibits occupiers from using or permitting the use of their lot in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of another lot or common property. Section 167 of the Body Corporate a Community Management Act states:

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—

causes a nuisance or hazard; or

interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

Taking action on that basis may be more productive than by simple reference to the prevailing pets by-law.

Remember that if the animal is a guide, hearing or assistance dog no permission is required to bring the animal onto the common property.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #413.

Question: We have pet approval for two dogs. One of our dogs has passed and we have a new dog of the same breed. Are we required to apply for pet approval even though we still have no more than two dogs?

My husband and I purchased an apartment in the Sunshine Coast two years ago. We had approval to have two dogs at the time.

One of the dogs has passed away and we have adopted another of the same breed.

Are we required to apply to our Body Corporate for the new approval for the pet even though we still have no more than two dogs.

Answer: Approvals are usually linked to a particular animal, so I think the safest bet is to ask again.

Subject to the terms of the original approval you may or may not have to.

My experience though is that approvals are usually linked to a particular animal, so I think the safest bet is to ask again.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #318.

Question: We have moved into our apartment, with our dog, prior to receiving pet approval. It is another two months before a committee meeting. Our dog is very well behaved. Are we doing the right thing?

We have moved into our high rise apartment 2 months after applying for our dog pet application. It will be another 2 months before a committee meeting will consider our request for pet approval.

As we had to move in with our pet prior to pet approval being granted is there any way they can force her out either before or after the vote if the application is rejected. We do expect the pet approval to be rejected as they don’t want pets in the building.

Over the past months, I have been harassed by a person claiming to be a member of the committee, saying “we don’t allow pets here”.

We carry our little King Charles Cavalier on and off the property through the basement car park. She is professionally groomed every 6 weeks, vaccinated, and basically sleeps all day.

Are we doing the right thing keeping our dog at the property even though we do not have pet approval?

Answer: In a sense, you have gone for the ‘it is easier to seek forgiveness than ask permission’ path!

No, you are not doing the right thing. You have breached the by-laws by keeping a pet without approval.

Having said that though, what you should do is make your formal application and then wait. If the committee is going to have a VOC to issue a by-law breach notice to you, they can consider the application at the same time.

In a sense, you have gone for the ‘it is easier to seek forgiveness than ask permission’ path!

Frank Higginson Email Hynes Legal Visit the Hynes Legal Website

Question: A lot owner is seeking pet approval. They have had a dog previously and paid no heed to the bylaws. Will it assist to have a condition setting out our right to rescind permission?

An owner in our scheme is seeking pet approval to keep a cat and a dog. The cat is already in the unit, and the dog has been purchased and will be arriving soon. We are in the process of casting our vote.

My concern is that this owner has previously had a dog which is now deceased under very similar conditions but during the ownership, the body corporate was completely ignored. In the most likely event that they get permission for the pet approval, could you please have a look at the condition and tell me what happens if indeed the Body Corporate has to exercise this condition. What are the implications for the Body Corporate and committee and would what happens to the animals?

Motion

The Committee for the Body Corporate for […] shall be entitled to rescind permission for the dog if it reasonably considers that the occupier has not complied with the conditions of approval and has failed to respond/react appropriately to the two warning about the concerns.

Answer: It is simply a matter of the body corporate enforcing bylaws and revoking pet approval if the breaches are not remedied.

The first thing is that you cannot shoot first and ask questions later. In financial planning terms, past performance is no indicator of future performance.

If the pet does break the rules, like anything else, it is a matter then for the body corporate to enforce the by-laws. The process here would be to notify the owner about the issues, give them a chance to remedy them, and the revoke the approval. If the pet was not removed, you would need to go to the Commissioner to seek an order that it be withdrawn.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #211.

Question: I own a villa in an over 50’s village in Queensland. Can the manager state that I cannot have a small dog? There doesn’t seem to be anything about ‘No Pets’ in my contract.

I live in an over 50’s village in Queensland.

Can the manager of this park state that I cannot have a small dog? They own the land but I own the villa.

I am 73 yrs old and lost my husband 6 months ago. I would just love a small companion to keep me company.

There doesn’t seem to be anything in my contract that says I can’t have a small dog but they continue to say a big NO.

Answer: If you are in a scheme then there will be by-laws which are applicable.

The first thing to double check is that you are actually in what’s called a ‘community titles scheme’ and not, for example, a retirement village or some other arrangement. If it’s a retirement village which isn’t part of a body corporate, that’s governed by very separate legislation.

If you are in a scheme then there will be by-laws which are applicable. If there’s a by-law about keeping animals, that will be what you need to focus on.

If that by-law says you need permission for your animal, then you can go ahead and seek that permission. If there’s no by-law about animals then you don’t need permission. If the by-law says no animals completely, then you won’t be able to have the animal until that changes and there’s a dispute process for that, as well as for the case if the committee refuses permission.

The terms of your contract aren’t really applicable here, assuming, again, that we are talking about a community titles scheme. If you’re not sure about any of that, you might need to seek some legal advice to assist.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #365.

Question: Our Body Corporate has refused a proposal for a resident to keep a cat and a dog. The resident is appealing the vote. What process does this appeal take and, during the process, do we get a chance to support the Body Corporate’s decision?

We had 2 proposals tabled from 1 tenant. One application was for approval to keep a cat, and the other to keep a dog.

We are a five-unit complex and the motion was resolved 2-0 mainly because the cat was already living in the building.

The application for the dog failed to pass by the same result 2-0.

Aside from the proposer, of the other 2 owners, 1 did not vote and the other was ineligible.

Now the proposer is appealing the vote.

Can you tell me who they appeal to and what process that appeal takes? Also, do the voters who voted “No” have a chance to support their decision?

Answer: The resident needs to go to the Commissioner’s Office to seek an order that the body corporate acted unreasonably in refusing the approval.

What they have to do is go to the Commissioner’s Office to seek an order that the body corporate acted unreasonably in refusing the approval. That will normally take somewhere around three months, but to be honest, these ones are pretty easy for them, which means it may be quicker. The pet will almost certainly be allowed.

…do the voters who voted “No” have a chance to support their decision?

Of course, they do – but the question is whether their say is an objectively reasonable one – which is now what matters. They will be asked for why and they will be able to explain themselves.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #205.

Question: I was wondering if you have any information about Pets in strata QLD for strata living and whether or not there has been a change.

I live in a complex on the sunshine coast where the Body Corporate has been in control for many years without change to their positions or representatives.

They all hate pets and do not consider individual requests or needs. At the last meeting, they refused a request for no reason at all other than to just say they hate pets.

I would appreciate any information you might have on the topic of pets in strata QLD.

Answer: If the Body Corporate has refused a request to approve a pet, the owner can make an application to the commissioner to have the decision overturned.

I know that there have been many cases where the commissioner has given approval for pets.

We have dealt with 4 or 5 cases ourselves.

The owner will also need to check what their bylaw actually say in regards to pets.

If there is a blanket ‘no pet’ rule, the owner could put up a motion on a general meeting to have the bylaw changed to a ‘pets with approval’ bylaw. If that motion is defeated, then they should include it in their BCCM application to have the bylaw changed.

Tower Body Corporate E: kelly.borell@towerbodycorporate.com.au P: 07 5609 4924

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of personal advice.

Question: Can body corporate administration fees for approval of pets in our strata be passed onto individual lot owners?

I live in a block of apartments in QLD and recently had a claim for damage to window frames following a break in. The window frames form part of the common property and a claim was submitted via the Body Corporate Management. Body Corporate Management has since invoiced me personally for the costs of administration for submitting that claim. Can they legally do that?

Also, when a submission is put forward for approval of a pet in our strata, the owner in question has to pay an administration fee to the committee. Can the committee do that or does the Body Corporate have to wear that cost? In other words, what body corporate administration fees can be recouped from individual lot owners?

Answer: If the lot owner wants pet approval considered outside the normal scope of the committee meetings, it is possibly fair enough to charge for this.

If the claim was for common property the strata manager should invoice the body corporate, not the lot owner, but only if they are entitled to under their management agreement.

With respect to the pet, if the owner wants it considered outside the normal scope of the committee meetings it is possibly fair enough to charge for it. While the body corporate has an obligation to respond, it doesn’t have to do so to every single request the day after it lands. If it is put to expense processing something outside the normal course of business, then I think the recovery of the administrative costs is fair. If there was a charge given even though there was a committee meeting already arranged like normal where it was considered, I think not.

The committee should tell the owner that, if they want it considered before the next committee meeting then they must bear the costs incurred. The owner should then be given the opportunity to wait or bear those costs for it to be expedited.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #130.

Question: Do apartments allow large dogs? If the Body Corporate refuses, where do I stand legally?

We own a 140 unit permanent management rights in Queen. We have 33 owner occupiers and 107 rental units of 86 are ours.

We bought the business is Sep 15 and asked if we were allowed an exemption to bring our 30kg bulldog. It was flatly refused. The Body Corporate by-laws state 1 animal up to 10 Kilos.

Since we have been here for a while, we are considering asking permission again, however, the committee is old school retired people and I am sure they still won’t approve.

If they still say no, where do I stand legally? I have heard of many onsite managers having special approval for a dog, so surely there is something that can be done.

Small dogs are often more troublesome than large dogs and the amount of excellent potential tenants I have to turn away because of a dog over the limit is enormous.

Hoping you can give me some guidance.

Answer: The starting point is whether a 10kg limit on pets is unreasonable.

The starting point is whether the 10kg limit on pets is unreasonable. Adjudicators consistently say that it is unreasonable – so the committee can’t rely on that for a basis of saying no to the pet even if it is in the by-laws. The committee would need to consider the pet application on its merits and approve it on reasonable conditions or refuse it (but only if that would be considered reasonable).

Other than a demonstrated nature of the pet to cause a nuisance to others, it is very difficult for a committee to refuse any pet.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #127.

Have a question about pet approval in QLD or something to add to the article? Leave a comment below.

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