Man’s Best Friend
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Medium and high-density living is becoming more popular, and with certain areas experiencing high population growth, it is also becoming necessary.
So, if we are leaving the “white picket fences” behind, what about our treasured companions, or man’s (woman’s) best friend?
We often hear from Buyers that agents have told them “the Body Corporate cannot refuse your application to keep your pet” or ”It only needs a week as the Body Corporate can no longer refuse”.
While the vast majority of Adjudicator’s decision handed down from the Office of the Body Corporate and Community Management Commissioner have been favourable to dogs being allowed to be kept in lots, and advise that no “blanket refusals” or “blanket policies” may be implemented, and each application must be considered on its merits, this is by no means the “rubber stamp” sometimes advised to Buyers.
The application must still be made to the Committee, and the Committee is still entitled to consider the application in accordance with the Scheme’s by-laws. However, should the Committee be quick to refuse, an application may be made to the Office of the Body Corporate and Community Management Commissioner. If, after conciliation and mediation attempts, the parties still do not agree on the decision, the matter may be taken further to adjudication. It is the final result in recent decisions that may have led people to believe it is now simple. However, the process often still has to be undertaken in full.
To summarise the recent decisions:
A blanket refusal in a by-law or by way of a “no pet policy” is actually prohibitive and goes beyond the power of a by-law to “regulate” the use of a lot. A blanket refusal is therefore against the legislation.
A consistent policy that refuses permission for pets to be kept in a scheme is unreasonable is that it does not consider the individual cases put before a Committee.
Any decision should be “objectively reasonable”.
Arguments regarding pets not being suitable in high rise, causing odours, bringing fleas, barking etc are not persuasive just because of the possibility of these factors. (In fact, there was even a decision where a 20kg dog, living in high rise, was stated in submissions to have bitten someone in the lift. The Adjudicator ordered that the dog may remain.)
Adjudicators have made it very clear that decisions of a Committee resulting in a prohibitive effect on a permissive by-law are unacceptable. However, this does not mean the result is a foregone conclusion. The application must be made in a measured and complete manner. A flippant application with an expectation of success will likely fall on “deaf ears” if the Committee is not “pet friendly” to start.
If you wish to keep a pet in a Body Corporate and need assistance with a suitable application, or if you are member of a Committee needing guidance in relation to pet approval applications, please contact Christine Matsinger.
The information in this document represents general information and should not be relied on for your specific circumstances. If you require legal advice and assistance on the matters contained or associated in this document you should contact MMLaw.
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The content published in this Blog is in the form of academic papers and the opinions expressed herein are generalised. The information provided is for educational purposes, not specific legal advice.
The application of any principles referred to can alter from case to case and accordingly you should seek independent legal advice in respect of your individual circumstances.