September 21, 2017 3:45 pm
As higher density living becomes more popular and affordable, we expect to see more disputes arising where buyers of units and apartments wish to move in with their beloved pet. So are you legally allowed to keep your pet at the unit? What if the Body Corporate by-laws prohibit keeping of animals?
Even if the majority of lot owners oppose the keeping of pets, a Body Corporate cannot automatically rule out all pets from being kept in the scheme. In 2010 QCAT held that such by-laws were unreasonable.
“Cats and dogs are ordinary domestic pets, some species of which may well be suitable for keeping in community title schemes, subject to reasonable conditions. In my opinion, a blanket ban on the keeping of cats and dogs is unreasonable.”
Because of this, the most common scheme by-laws provide that a person must not keep a pet without Body Corporate consent. Here is where it gets tricky, because a Body Corporate cannot unreasonably refuse that consent. Some of the most common reasons for refusal are:
- The dog is a “dangerous” breed and therefore there is danger to other residents;
- The likelihood of barking or noise which would interfere with the peace and enjoyment of other residents;
- The likelihood of the pet creating mess on the common property which other residents would need to clean up;
- Granting consent for a pet could create a precedent for existing and future lot owners; and
- Sometimes there will be no reasons at all.
Now as a pet-owner myself I may be biased as to what is reasonable and what is not*. So reading through the last 6 months of decisions from the Body Corporate and Community Management Commissioner’s office, we can see the following trends:
- Adjudicators have consistently found that it is unreasonable to refuse permission based on potential or hypothetical problems without any real evidence to believe that the animal will actually cause the issues worried about. This means it would be unreasonable to label a dog to be dangerous purely on its breed. There needs to be some evidence of that particular dog being dangerous. The same applies to noise, merely because dogs are known to bark, doesn’t mean that the applicants dog barks, it might just be a quiet dog!
- Pets will usually be allowed by the Commissioner but reasonable conditions will be imposed, examples include:
- The pet may traverse common property only for the purpose of being brought directly into or taken away from the scheme land and the pet must be leashed or carried;
- The pet must not be permitted to make noise or otherwise cause a nuisance that would interfere with any other persons use or enjoyment of another lot in the scheme;
- If any of the conditions are breached, it would give the Body Corporate avenues for enforcement of the by-law.
- Where pets are approved by adjudication, that approval will only apply to that dog and does not authorise the keeping of any additional, replacement or substitute animals in the lot.
To sum up, if a Body Corporate refuses an application to keep a pet, there are only very few circumstances where that refusal will be upheld, that is, where there is hard evidence to show that keeping the pet will cause a nuisance or interfere with any other persons use or quiet enjoyment. If this does happen to you, we would recommend you seek independent legal advice regarding your specific situation.