Keeping Pets

Keeping pets has become a hot topic in the Body Corporate world and the Office for the Commissioner for Body Corporate and Community Management has the current view on the Body Corporate’s responsibility and powers when considering a pet application: 

The adjudicator pointed out that many owners in schemes with a permissive by-law take the by-law to mean pets are not allowed. The adjudicator stated that this is not the case and it is the responsibility of the body corporate administering such a by-law to properly exercise its discretion by considering each application on its merits. The adjudicator went on to say that the primary issue for a body corporate considering a pet application is the likelihood of an adverse impact on common property or any person. Where there are genuine concerns, the imposition of reasonable conditions on keeping the pet may be more reasonable than outright refusal.

The Commissioner's Office also has a strong position on by-laws that attempt to limit the size of a pet as per the quotation below:

It seems to me that to have a condition of a by-law that an arbitrary weight or size is the criterion which the committee relies on to decide whether to allow a pet into the scheme is unreasonable in the same way as a by-law itself which fixes a limit by weight or size. It also does not achieve the objective for which it is designed. It would be far better for the committee to retain flexibility so that each animal may be assessed on its known propensities or likely attributes. A reasonable criterion would be that “the committee may consider an animal’s size and weight.” That would then give the committee the ability to refuse, say, a small dog known to be yappy or snappy. In other words, the size or weight of any animal is not an indicator of whether it might be an annoyance or nuisance to other occupiers. http://www.austlii.edu.au/au/cases/qld/QBCCMCmr/2011/400.html

We have found the best approach is for the Committee to consider the request and place reasonable conditions on the approval based on the type of pet and the facilities of the lot and common property.  The conditions may be similar to the following: 

  • The dog must be kept within the lot while it is present on the scheme;

  • The dog must traverse common property only for the purpose of being brought onto or taken off scheme land, at which time the dog must be appropriately restrained;

  • The dog is not permitted to cause a nuisance or interfere unreasonably with any person’s use or enjoyment of another lot or common property including, but not limited to, barking and howling;

  • Reasonable steps must be taken to minimise the transmission of airborne allergens from the dog to other lots or common property, for example, by vacuuming the lot and grooming the dog;

  • Reasonable steps must be taken to keep the dog in good health and free from fleas and parasites;

  • Any animal waste must be disposed of in such a way that it does not create noxious odours or otherwise contaminate the scheme;

  • Any approval granted only applies to one dog and does not authorise the keeping of any additional, replacement, or substitute animals on the lot.

And further, the committee shall be entitled to rescind permission for the dog if it reasonably considers the applicant has not complied with these conditions and that the applicant has failed to respond appropriately to warnings about their concerns.

With the above in mind, Committee Members should consider what potential problems may arise from an occupier keeping a pet and transform those concerns into conditions of approval.

So, does this leave the Committee powerless to refuse or rescind a pet request if the owner does not meet the conditions of approval?  The Commissioner’s Office has addressed this scenario through a number of adjudications including:

… reasonableness is not a question of whether the body corporate made a correct decision or the best available decision.  The question is whether the body corporate’s decision was reasonable in all of the circumstances.  The body corporate has demonstrated that it received complaints of excessive barking and those complaints identified the applicant’s lot as the source of the noise. The body corporate took the views of the applicant’s neighbours into account…   ... Under these circumstances, I can not see that it was unreasonable for the body corporate to conclude that the applicant’s dog was creating a noise nuisance and to refuse permission for it to remain on the scheme. http://www.austlii.edu.au/au/cases/qld/QBCCMCmr/2015/82.html

And reasonableness is the true measuring stick for both Committees and Pet Owners.  The Committee must act reasonably in assessing each request on its merits and Pet Owners must be reasonable in respect to the peaceful enjoyment of other owners and occupiers of the Body Corporate.

Written by: Duncan Lee 

Lisa NorvockBody Corporate, Pets, BCCM, Queensland