One of the most common issues dealt with by this office in conciliation is the refusal of pets by the body corporate. Here are a few common FAQs which might help you through some of these issues:
1. Has the law changed recently to make pets allowed in community titles schemes?
In 2008, as a consequence of an appeal of an adjudicator’s decision, the Queensland Civil and Administrative Tribunal (QCAT) formerly Queensland Consumer and Commercial Tribunal (CCT) considered whether or not a by-law that applied an absolute ban on pet ownership exceeded a body corporate’s authority. The QCAT decided that imposing an absolute ban on the keeping of animals was unreasonable. As a consequence subsection 7 was inserted to section 180 of the Body Corporate and Community Management Act 1997 (Act) in 2009. Section 180 of the Act, provides for limitations on by-laws.
A by-law cannot be oppressive or unreasonable, having regards to the interests of all owners and occupiers of lots included in the scheme and the use of the common property. It is now a settled matter of law that adjudicators and other jurisdictions have found that prohibiting animals outright is in conflict with the powers (sections 180(7), 169 and 94, Act) given to a body corporate to effectively govern and regulate lots and common property.
2. I have previously had a cat approved who has since passed away. Can I get another one without having to go through the approval process again?
Not as of right. Most approvals for pet ownership given by the body corporate are specific for the animal that you currently own or are buying. That approval does not automatically transfer to any new animals you wish to purchase. You may wish to check the wording of the approval given.
3. I asked for approval of my pet and the body corporate advised me that it’s approved but gave me a list of conditions. Do I need to comply with the conditions?
Not all bodies corporate welcome pets with open arms. Sometimes other owners in the complex have concerns about the impact that pets may have on them and their lifestyle. Most of those concerns can be addressed by imposing conditions. If you don’t agree with all of the conditions imposed by the body corporate you should discuss your concerns with them in the first instance. If there is no agreement on the list of conditions then the body corporate may not be in a position to approve your pet. There have been a number of adjudicators’ orders which have dealt with conditions imposed by bodies corporate.
Some of those conditions have included, but are not limited to:
• The animal must be adequately restrained on common property
• The animal must be kept within the boundaries of the lot
• The animal must not create unreasonable noise disturbance
• Any droppings from the animal within the lot or on common property must be cleaned up immediately and disposed of in such a way that is does not create noxious odours or otherwise contaminate the scheme
Previous adjudication orders can be searched online
4. My pet was approved and now the body corporate is saying I have to remove it because they say it barks too much.
That may be the case. Just because your animal is approved does not mean that it can misbehave. Owners need to take responsibility for their pets and ensure they do not cause nuisance to other owners and occupiers.
5. Every time someone asks for a pet in my body corporate the body corporate says no, and tell owners to apply for a dispute application with BCCM. Is it ok for the body corporate to get BCCM to make the decision?
No, to put it bluntly. In fact the Commissioner’s Office should be the last port of call. An applicant must attempt self-resolution before lodging a dispute with our office. If you have exhausted all avenues available to you to get a formal decision from the body corporate, then you may need to lodge your application. Since 2009 adjudicators orders have consistently ordered in favour of the pet owner, unless there has been good reason not to. This should be a good indication to all bodies corporate that it’s unlikely their decision not to approve the pet will be upheld.
Your body corporate could be wasting valuable time and money (and remember, that money is money contributed by each owner in the form of levies) if applications to this office, are based on a ‘longstanding no pets policy’ or ‘house rules’ to apply a ban on the keeping of pets. It also means that any potential purchaser who does a search of adjudicators orders on your scheme may see that it is particularly litigious and look elsewhere.
6. My dog is a therapy dog for my anxiety. Do I still need to ask the body corporate for permission?
If your dog is certified under the Guide, Hearing and Assistance Dogs Act 2009 then you don’t need to ask for permission to keep your dog. If your dog is not certified, you will need to seek permission just as you would for any animal. In other words, there is a difference between a certified animal and a therapy or companion animal.
7. I am trying to sell my unit and every time a prospective purchaser is interested the body corporate says no to their request for an animal. What can they do?
Our Office does not have jurisdiction to deal with disputes between a purchaser and the body corporate. We often suggest that both the current owner and the purchaser make attempts to resolve the issue by asking the body corporate to approve the animal first.
If the body corporate does not approve the request to keep the animal the current owner may consider applying for conciliation and name the purchaser as an interested person in the application. If the application is not resolved before the settlement of the property a request can be made to substitute the applicant to the new owner’s name.
You can read an adjudicators order that dealt with a purchaser’s request for an animal here
8. My by-laws states that I cannot have an animal that weighs over 10 kilograms. Can they put that restriction in an animal by-law?
In the majority of circumstances adjudicators have ruled a body corporate is not able to put a weight restriction on the ownership of animals. It has been ruled that the size of an animal is not an indicator of the impact it may or may not have on other owners within the community titles scheme.
9. I rent a unit in a complex which has a by-law which requires me to ask for permission to keep an animal. I requested for an animal from the body corporate and the owner. They both said no. What can I do?
If you are renting a property you will need to check the terms of your tenancy agreement to see if you have permission from your owner. For more advice on your rights under the tenancy you may wish to contact the Residential Tenancies Authority (RTA) on1300 366 311.
If your owner has given approval for you to keep a pet, you will also need permission from the body corporate. As a tenant you have the same rights as an owner to ask the body corporate for permission to keep an animal. If the body corporate says no, you have the right to dispute that decision through our Office if you believe it to be unreasonable or unlawful.