We have frequently been consulted about how to deal with the keeping of pets in strata title properties in Queensland.
So, who makes the rules around pets when it comes to strata titled properties? Can pets be banned from units?
In Queensland, the relationship between occupiers of lots in a community title scheme are governed by:
- the Body Corporate and Community Management Act 1997 (the Act) and its associated regulations; and
- by-laws for each scheme that are included in the scheme’s community management statement (CMS).
The application of certain by-laws can be contentious, particularly those which relate to pets, parking, or which seek to restrict the use of common property.
Our starting point is that the body corporate is responsible for managing and maintaining the common property but must act reasonably in the performance of this obligation. The concept of ‘reasonableness’ is frequently debated. Its application depends on an objective consideration of the surrounding circumstances, and the balancing of competing interests.
That is why community title schemes implement by-laws – to assist in governing the relationship between occupants with competing interests.
However, by-laws must not be directly inconsistent with the Act, or applied in a way that is inconsistent with the Act. Because of this, Queensland Courts and Tribunals have formed the view that most blanket by-laws like “no pets allowed”, “no resident parking on common property other than exclusive use areas”, and “no playing of music” are mostly invalid.
Prohibitive by-laws are invalid firstly because they are inconsistent with the notion of regulating the use of property, and secondly because they disregard the obligation for body corporates to act reasonably by considering applications on their merits. Applications for use need to be considered on their merits:
- What is the nature of the scheme?
- Where is the scheme located?
- What are the size and the design of the lots within the scheme?
- What is the size and layout of the common property?
- How many of the lots are actually occupied?
- Is the proposed use lawful under council regulations and the general law?
- How is the common property used by other occupants within the scheme?
- Are there any security, lighting and maintenance concerns?
- Does the occupant have any specific health issues or needs?
- Where the interference involves common property, is the interference substantial enough to cause a nuisance having regard to the nature and severity of the encroachment, accessibility, location, time, use by others, steps taken by body corporates to rectify issues leading to the encroachment, the availability of other precautions and the reasonableness of those precautions.
- Personal sensitivities of other occupants?
This leads us to our second issue which is the extent to which bodies corporate can regulate the use of lots and any limits that apply.
Bodies corporate are clearly allowed to regulate the use and enjoyment of lots by implementing permissive by-laws. A permissive by-law is one that allows occupiers to do certain things like keeping pets, playing music or using a swimming pool, subject to certain restrictions like obtaining body corporate consent. They are more likely to be enforceable than prohibitive by-laws, but not if the restrictions or the decisions are oppressive or unreasonable.
Although these decisions do turn on their facts, below is some examples of how courts and tribunal have made decisions in connection with restrictive and by-laws:
- A restrictive by-law which imposed an absolute ban on pets in form and in substance was invalid because it was oppressive and unreasonable.
- A by law that sought to ban cats and dogs was invalid for being unreasonable because it purported to prohibit an ordinary domestic activity.
- The decision to refuse a pet for someone suffering from anxiety and depression was oppressive and unreasonable.
- A by-law that required one animal only within certain weight limit was unreasonable.
- A by-law that restricted the number of pets without considering the merits was oppressive and unreasonable.
- A decision to allow an invitee to temporarily bring a pet onto common property and into the lot so as to visit a lot owner was oppressive and unreasonable.
- The decision by a body corporate to revoke its consent for an owner to keep a pet in a high-rise building which continued to urinate over the side of a high-rise balcony (thereby affecting the occupants below) was reasonable. The owner was originally allowed to keep the pet but continued to repeatedly contravened cleanliness conditions the owner agreed to comply with once the problem came to light. The body corporate also exhausted all other options that would otherwise enable the occupier to keep the pet before it withdrew consent.
In conclusion, although body corporates can make decisions which regulate or limit certain domestic activities, the goal continues to be flexible self-determination. Each decision should be considered on their merits. They can also be easily overturned if they are oppressive or unreasonable.
It also raises concerns about the exposure of body corporates who repeatedly make decisions or act against occupiers with respect to certain domestic activities, which they know will be found to be oppressive and unreasonable if challenged.
If you would like more information about the keeping of pets in a community title scheme, please give us a call.