Pet ban upheld in body corporate by-law dispute

Property & Body Corporate

Pet lovers across Australia have been dealt a minor blow after an appeal in NSW upheld the rights of Body Corporates to establish rules that restrict the behaviour of owners in buildings, including owning pets.

While the appeal was held by the NSW Civil Administrative Tribunal (NCAT) Appeals Panel and technically doesn’t create legal precedent into other states, MBA Lawyers body corporate law expert Clayton Glenister says other adjudicators in jurisdictions such as Queensland will most definitely note the opinions and ruling in this particular case given the seniority of the Appeal panel members.

“There are three basic schools of thought when it comes to pet ownership,” Mr Glenister says.

“The first is that pets were never allowed in years gone by, so they shouldn’t be now.

“The second is that companion animals do more good than harm, add to the amenity and ‘livability’ of strata living and therefore no matter how good or bad the animals behave, owners should be able to have them and denying owners that right is unreasonable.

“The third view is that owners as a collective group should have the right to decide if they want their complex to be ‘pet friendly’ or a ‘no pet’ scheme. This theory means that if you don’t like the rules before you buy in, then look elsewhere and reflects the ability of Body Corporate’s to self-govern its scheme.”

In the NSW appeal, the panel stated that apartment owners should have known what the rules were when they purchased their apartments and therefore, had literally bought into them.

Decision impact to extend beyond pets

Mr Glenister says the effect of this decision goes beyond pets and, to some extent, the borders of NSW. This decision has confirmed the right of strata schemes to establish their own self-govern rules that may restrict the behaviour of owners within the building.

In Queensland you must ask the body corporate’s permission to keep an animal in the apartment you wish to purchase, however there have been limited grounds for a Body Corporate to reject the application.

A body corporate can choose to adopt the standard by-laws set out in Schedule 4 of the Body Corporate and Community Management Act 1997 (Qld) or it can make its own. It can also make new by-laws or change its existing ones at any time.

“The appeal decision in NSW has given validity to restricting something as important as pet ownership in strata,” Mr Glenister says.

“This has traditionally been one of the more contentious issues that we deal with as expert lawyers in Body Corporate law in Queensland. Essentially this decision enforces the principle that your responsibilities as a member of the strata community override your “rights” as a homeowner within the scheme.

“Now that the ‘pets’ issue has been decided, it will be interesting to see whether the other P’s of Body Corporate (parking, pools, parties and passive smoking) are also dealt with the same brush.”

It is advised to read the by-laws thoroughly before making a purchase or contact Clayton Glenister for expert advice on your unique situation.

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