As strata managing agents would attest, pets are the source of unending problems within strata schemes. Owners corporations can be faced with determining whether to allow pets in their scheme on two levels; when considering applications for approval, and when deciding whether to change the by-laws.
LEGISLATIVE BACKGROUND
• By-laws generally are governed by Part 5 of the Strata Schemes Management Act 1996 (Management Act). A set of By-laws is created upon registration of the strata scheme and it can subsequently only be changed via a special resolution. We will not discuss by-laws generally in this paper.
• Section 47 of the Management Act allows an owners corporation to change by-laws for certain purposes, and regulating pets within the scheme would be one of those purposes. A special resolution is required.
Section 47 states:
An owners corporation, in accordance with a special resolution, may, for the purpose of the control, management, administration, use or enjoyment of the lots or the lots and common property for the strata scheme, make by-laws adding to, amending or repealing the by-laws for the strata scheme.
• It is important to note section 49(4) of the Management Act, which deals with guide and hearing dogs, which cannot be banned from a strata scheme but are subject to by-law 1 (noise). Section 49(4) states
(4) By-law cannot prevent keeping of guide dog
A by-law has no force or effect to the extent to which it purports to prohibit or restrict the keeping on a lot of a dog used as a guide or hearing dog by an owner or occupier of the lot or the use of a dog as a guide or hearing dog on a lot or common property.
• The CTTT derives its ability to make orders from section 150 of the Management Act. This section gives an adjudicator the power to order an animal be removed from a lot and the power to authorise an animal to remain on a lot.
Like most proceedings in the CTTT, the matter must first (under section 125(1) of the Management Act) go to Mediation before an application is made for Adjudication. The decision by an adjudicator can be appealed to the Tribunal.
150 Order relating to keeping of animals
(1) An Adjudicator may order a person who the Adjudicator considers is keeping an animal on a lot or common property in contravention of the by-laws to cause the animal to be removed from the parcel within a specified time, and to be kept away from the parcel.
(2) An order under subsection (1) ceases to have effect if the keeping of the animal on the lot or common property is subsequently authorised in accordance with the by-laws.
(3) An application for an order under subsection (1) may be made only by an owners corporation, a strata managing agent, the lessor of a leasehold strata scheme, an owner, any person having an estate or interest in a lot or an occupier of a lot.
(4) An Adjudicator may, by order, declare that the applicant for the order may keep an animal on a lot or common property in such manner as is specified in the order if the Adjudicator is satisfied that:
(a) subclause (2) of by-law 16 in Schedule 1 (or a provision to the like effect in any by-laws) is in force in relation to the strata scheme, and
(b) the application is made with the consent of the owner of the applicant’s lot (if the applicant is not the owner), and
(c) the owners corporation has unreasonably withheld its consent to the keeping by the applicant of the animal on the lot or the common property.
(4A) An application for an order under subsection (4) may be made only by:
(a) an owner of a lot in the strata scheme, or
(b) an occupant of a lot in the strata scheme, with the consent of the owner of the lot.
MODEL BY-LAWS
• The model by-laws are set out in Schedule 1 to the Management Act and, for residential by-laws specifically, Schedule 2 of the Strata Schemes Management Regulation 2010 (Management Regulation). Clause 16 of the model by-laws in the Management Act and clause 17 of the model by-laws in the Management Regulation deal with animals.
• Parties lodging a strata plan for registration must select option A, B or C for by-law 16 (animals). If none is chosen, then option A applies by default.
• Option A – this is the most common by-law 16. It states:
(1) Subject to section 49(4) (guide dogs), an owner or occupier of a lot must not, without the approval in writing of the owners corporation, keep any animal on the lot or the common property.
(2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property.
The key parts are that an owner must apply for consent, but that consent cannot be unreasonably withheld by an owners corporation.
• Option B – this is more lenient on keeping animals. It allows cats, birds, fish and small dogs without requiring the consent of an owners corporation, though notification is required and standards are set. Under Option B:
(1) Subject to section 49(4) of the Act, an owner or occupier of a lot must not, without the prior written approval of the owners corporation, keep any animal (except a cat, a small dog or a small caged bird, or fish kept in a secure aquarium on the lot) on the lot or the common property.
(2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property.
(3) If an owner or occupier of a lot keeps a cat, small dog or small caged bird on the lot then the owner or occupier must:
(a) notify the owners corporation that the animal is being kept on the lot, and
(b) keep the animal within the lot, and
(c) carry the animal when it is on the common property, and
(d) take such action as may be necessary to clean all areas of the lot or the common property that are soiled by the animal.
• Option C – this is a complete ban on animals, subject to a person’s right to keep a guide or hearing dog. It states simply:
Subject to section 49(4) of the Act (guide dogs), an owner or occupier of a residential lot must not keep any animal on the lot or the common property.
EXAMPLES OF CTTT DECISIONS
Consent cannot be unreasonably withheld
There are various examples of the CTTT interpreting what is reasonable in relation to the Option A by-law:
• SP52024 v Cumming – “Chuckles” the dog was permitted to stay. No neighbours complained about the dog being noisy, smelly or vicious. Making submissions at an Adjudication or an Appeal that residents want to live in a dog-free scheme is irrelevant if the by-laws don’t support that. The Adjudicator can only make a decision based on the by-laws at that time;
• Beames v OC – one of the reasons for the executive committee refusing consent was that they had few details of the dog. However, the Member commented that the EC should have asked for the extra information rather than refusing consent on this basis. Another reason from the EC was the desire not to set a precedent for allowing dogs, however this is not a valid reason under Option A and the OC has to consider the application on its merits;
• Summerfield v OC – others in the strata scheme had been granted permission to keep a dog and the uncontradicted evidence was that the dog was small and well-behaved. The refusal was based on a survey of owners by the EC and the consensus was that they wanted no more dogs. The member found that there is a need for consistency and the refusal was unreasonable. The member also commented that it is open to the OC to pass a new by-law “which better reflects the wishes of lot holders”.
• Johnson v OC – appeal against refusal to keep a cat. Reasons for refusal by the EC included: not wanting to set a precedent; hurting local birds; allergies from other residents; and “just wanting a cat” is not a sufficient reason for having one. On the basis that the cat will be kept wholly within the lot and will be transported across common property in a cage, the Adjudicator held that the refusal was unreasonable. The adjudicator commented that “precedent concerns are not valid concerns”, and each application for consent has to be considered on its merits.
• Montagna v OC – the applicant sought permission from the EC to keep a bichon frise dog on the lot. The application was refused and no reasons were given. The applicant requested reasons and was ignored, and sought mediation but the EC refused to attend. The application provided information about the breed suggesting it would be well suited for apartment living and said it would be well trained. The OC made no response. Several owners signed a “standard letter” that they do not want dogs in their block. One owner objected, claiming that dogs should not be kept in the block, that the Applicant has caused problems, it [keeping a dog in a unit] will lower the value of the units, and noise. Another owner claimed the OC could make a decision based on “majority rules”. The Adjudicator found that it was not appropriate for the OC to decide that it does not want animals in the block because Option A applied, and that the application had to be considered “on its merits”. The Adjudicator found that the evidence from the Applicant showed that the dog was suitable for apartment living and no evidence from the respondent supported its claims.
• Richardson v SP56695 – the Applicants owned a dog called “Tarquin” before purchasing the villa. Just before settlement they were made aware of a “no pets policy” at the strata scheme. The real estate agent had made representations to the Richardsons that they would be able to keep a pet, however this does not in any way bind the OC in making its determination. At the time of the hearing, Tarquin had been at the villa for 16 months without a single recorded complaint from an owner. Several owners provided statements attesting to Tarquin’s good behavior. The owner also presented medical evidence as to the ill health of Mr Richardson and the therapeutic benefit of him having a dog as a companion. The Member found that consent had been unreasonably withheld.
• Myers v Delic – the owner kept an Alsatian in their unit. There were allegations that this dog had scared other residents. As at the date of the hearing, no formal application had been made by the applicant for permission to keep the dog, so any refusal cannot be considered unreasonable. The Adjudicator also held that the dog was unsuited to apartment living as it was loud and noisy and disturbs the enjoyment by other occupiers of their unit.
• SP57783 v McDonald and Evic – a Member imposed penalties on two owners for a failure to comply with an order to remove animals.
• Codd v SP14077 – in this case, there was a weight of evidence that a dog was causing a genuine disturbance to other residents by attacking people and making a lot of noise, and the Member held that the refusal to consent to the dog was reasonable. The Member also made a couple of other relevant comments:
- if approval for the dog had initially been granted, there would have been a breach of by-law 1 (noise); and
- if the owner of the dog had been considered a visitor, there would have been a breach of by-law 8 (invitees’ behaviour).
• Engelman v OC – in this case the Adjudicator (questionably?) refused consent to a dog being kept at the lot. The dog was small, did not make a lot of noise and was non-hair shedding. There was a code at the building posted on the notice board (prohibiting animals), but as the Adjudicator noted, the by-laws apply over and above the code. The Adjudicator took into account that the owner provided no evidence of “special need for a companion”, and that a survey showed that a majority of owners did not want this (or any) dog.
• Summary – decisions in respect of Option A depend on the merits of each application, eg size or type of dog, its behaviour, its suitability to apartment living etc. EC or OC attitudes of not wanting to set a precedent or having enough animals in the scheme are irrelevant if this is not consistent with the by-laws. If this is the OC’s position, it should change the by-laws.
Hearing/Guide dogs
• DP270143 v Langtry – the management statement prohibits all animals except guide/hearing dogs and fish in tanks. The owner was keeping two dogs in apparent breach of the management statement, but claims that they were assistance dogs. A hearing dog is “a dog trained to assist the…person in activities where hearing is required”. Examples where a hearing dog can assist include telling the owner (by touching him with their paw) if there is a knock at the door, if the telephone is ringing or if a truck’s reversal beepers are operating. The Adjudicator found that the dogs’ actions whilst simple, did assist the owner. The CA asserted that the dogs bark excessively, but there was a lack of statements from other owners complaining about this. The Adjudicator added that training can be done by someone who is not formally qualified.
Other examples
• SP10829 v Pradie – conditional consent had been given to approval of a dog. The consent was based on information which had been misrepresented (the age of the dog). This meant that there was no actual consent for the keeping of the dog.
• Webster v SP4680 – in this case, the OC changed to Option C. It then commenced action against owners who kept animals without consent. The OC was successful because the owners never had permission for the dogs. If the owners had applied under the previous by-law 16 (Option A) and had been approved or unreasonably refused, then the new Option C by-law would not have operated retrospectively to ban animals previously approved.
• Tenant wished to run a doggy day care (up to 30 dogs at a time) from a lot within an industrial scheme. The owners corporation refused to consent to a DA to council for this use and the member found that the refusal to consent was not unreasonable, taking into account noise levels, traffic levels and other matters submitted by the owners corporation.
RECOMMENDATIONS
• In order to avoid heartache later on, an owners corporation should decide as soon as possible if it wants to be a “pets” or “no pets” strata scheme. Once this is determined, the owners corporation can, under section 47 of the Management Act, change the by-laws to model them on either Option B (smaller animals permitted without requiring consent) or Option C (no animals permitted) of the Model By-Laws. Leaving it as Option A means the test of reasonableness will often be decided by the CTTT and the owners could be left with little say.
• For owners, if the other owners corporation proposes passing a by-law banning animals altogether (ie changing to Option C), then the individual owner should urgently lodge an application for permission to keep an animal before the by-laws have changed. This application would have to be heard under the existing by-laws.
• If you intend buying into a strata scheme and pets are an important issue, do your homework before moving in. If they are Option A model by-laws, apply for consent through the proper channels to avoid potential problems. The CTTT decisions show that unless your animal is particularly loud, big or in some other way unpleasant or unsuitable for strata schemes, the CTTT will often support the application for consent.
• If an owners corporation wishes to take action against an owner for removal of an animal, it should carefully collate appropriate evidence, such as statements from various owners, to provide to the CTTT.