Bay Vista Apartments [2012] QBCCMCmr 188 (30 April 2012)

Last Updated: 10 May 2012

ADJUDICATOR’S ORDER

Office of the Commissioner

for Body Corporate and Community Management

ORDERS MADE:

REASONS FOR DECISION

Introduction

[1] This application relates to the keeping of pets. The applicants are owners who are seeking to sell Lot 8. They have a prospective purchaser who will only buy the lot if his children are able to bring their pet dog when they visit the lot. The Committee refused approval for the dog.

[2] The applicants consider the Committee decision is unreasonable, particularly as another dog lived in the scheme for five years without complaint. They are unable to sell their lot until the matter is resolved and are concerned the sale will be lost, to their financial disadvantage.

[3] The question then is whether the decision of the Committee to refuse permission for the dog was reasonable in the circumstances, or whether approval for the pet should be given.

Preliminaries

[4] Bay Vista Apartments community titles scheme 33022 (Bay Vista) consists of nine lots and common property. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as Building Unit Plan 106757.

[5] The applicants lodged this matter on 29 March 2012, seeking the following order:

That permission be granted for keeping of the pet by the prospective purchaser of my unit as per guidelines set out in conciliation agreement (attached).

Jurisdiction

[6] I am satisfied that this dispute falls within the dispute resolution provisions of the legislation.[1]

[7] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute in a community titles scheme about a claimed or anticipated contravention of the Act or CMS, or the exercise of rights or powers or performance of duties under the Act or CMS.[2] An order may require a person to act, or prohibit a person from acting, in a way stated. An order may contain ancillary and consequential provisions the adjudicator considers appropriate.[3]

Procedural matters

[8] In the first instance the applicants lodged an application for conciliation. A conciliation session was conducted on 22 March 2012 and an agreement was reached between the parties. However this agreement has not resolved the dispute.

[9] The Commissioner invited submissions from the Committee and all owners[4]. Submissions were made by the owners of seven lots. The applicants did not avail themselves of the opportunity to inspect and respond to the submissions received.[5]

[10] A dispute resolution recommendation[6] was made referring the file to department adjudication.

[11] I then investigated the dispute[7], which included reviewing the application and submissions.

Matters in dispute

[12] The applicants have apparently entered into a contract to sell Lot 8 to Dr Lindsay Allen (Allen). However it seems the contract is subject to a condition that Allen will be given approval for his children to bring their pet dog to the apartment when they visit him. He will not proceed with the sale without that approval.

[13] On 16 February 2012 the applicants completed the Body Corporate’s “Requesting approval for pet” form.

[14] The form said approval was sought for a 10 year old, 8kg, brown/black Jack Russell terrier known as Roger. The applicants agreed to the seven conditions specified on the form. On 24 February the Committee passed a resolution outside a meeting refusing permission for the dog. The applicants verbally sought a reconsideration of the decision but were refused.

[15] The matter then went to conciliation. At conciliation the Committee agreed to reconsider the request within seven days. The Committee refused this request on 25 March 2012.

[16] The submissions made by seven lot owners (and purportedly on behalf of the eighth) say they cannot give approval to a prospective purchaser because the purchaser does not have the legal standing of a lot owner. While lot owners are eligible to apply for personal pet approval, no mandate exists for a lot owner to apply by proxy on behalf of a prospective purchaser.

Analysis

[17] The current CMS for Bay Vista was recorded in August 2004. It includes the following:

10. KEEPING ANIMALS

10.1 Subject to Section 143[8] of the Act, an Occupier must not, except with the consent in writing of the Body Corporate Committee:

10.1.1 bring or keep an animal or bird on the Lot or the Common Property, or

10.1.2 permit an invitee to bring or keep an animal or bird on the Lot or the Common Property.

10.2 Any consent of the Body Corporate Committee may be:

10.2.1 given on conditions, and

10.2.2 withdrawn at any time.

[18] There is a general requirement[9] that a committee and body corporate act reasonably in making a decision. Where this does not occur, an adjudicator may intervene to make an order that is just and equitable to resolve a dispute, including declaring a resolution purportedly passed to be void or to give effect to a motion that was not passed.

[19] Adjudicators have consistently held[10] that by-laws like By-law 10 are ‘permissive’ in that they permit the keeping of pets, albeit with prior consent. Adjudicators have further held[11] that permissive by-laws require a committee to exercise discretion in whether to approve an animal or not. A committee may have a preference against pets, but they cannot override the by-law by imposing a blanket ban on all animals and must consider each request on its merits.

[20] The primary issue for any body corporate considering a pet application is the likelihood of an adverse impact on common property or any person. In 2010 the Queensland Civil and Administrative Tribunal[12] noted cats and dogs are ordinary domestic pets, some of which could be kept in a community titles scheme (in that case a high rise building) without inconveniencing others. Where there are genuine concerns, the imposition of reasonable conditions on keeping the pet may be more reasonable than outright refusal. In addition the legislation specifically prohibits an occupier from using or permitting the use of a lot in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of another lot or common property[13]

[21] Neither the Committee nor any owner has raised any general objection to dogs or other pets in the scheme, or to Roger specifically. Any objections could presumably only be hypothetical concerns about the dog’s potential impact, given the dog has not yet been brought onto the scheme. It is entirely appropriate for a body corporate to impose reasonable conditions on a pet to avoid problems arising, and to withdraw approval if conditions are not complied with. However I do not consider it reasonable to refuse permission based on potential problems without any evidence that the animal in question will actually cause those problems or that the lot occupier will not comply with reasonable conditions.

[22] In any event, in the current dispute there is no argument raised that owners object to the dog. Rather owners appear to believe that the applicants have no right to seek permission for the dog on behalf of a prospective owner and that the prospective owner has no right to seek permission for a dog because they are not a lot owner. In my view there is absolutely no basis for this view.

[23] By-law 10 says an animal cannot be brought onto the scheme unless there is Committee consent. The by-law does not limit who can ask for consent or when, and there are no restrictions on who the Committee could give approval to or when. There are no legislative provisions restricting the Committee’s consideration of such matters. There is certainly nothing in either the by-law or the legislation that would restrict approval for a pet to only a current lot owner who applies on their own behalf.

[24] I see no reason why a lot owner could not seek approval for a pet on behalf of a prospective owner who would like to keep a pet if they became an owner, or indeed for a prospective lot owner directly seeking approval for a pet. Similarly I see nothing to prevent an owner seeking approval on behalf of a current or prospective tenant. Of course any approval would be conditional on the person actually purchasing (or leasing) the lot. I note that two current recent adjudications have contemplated giving approval for a pet to prospective purchasers[14].

[25] In my view, preventing consideration of pet requests by or on behalf of a prospective lot owner or occupier creates unreasonable difficulties for an owner in selling or leasing their lot. It is entirely understandable that people with pets would not wish to rent or buy a lot without the prior assurance that they will be able to keep their pets. If they are not permitted to seek approval until they move in, they will be in an invidious position if approval is not then given.

[26] I am at a loss to see what possible disadvantage there could be to the Body Corporate from deciding the matter before a sale or lease is completed. It could seek reasonable further information about the prospective occupant or pet if they wished. If approval is given conditional on the sale or lease being completed, it lapses if the sale or lease does not proceed. By deciding the issue before the occupancy commences, they also avoid the situation of an unapproved pet being brought on the scheme while a decision is pending.

[27] I do consider a committee should not be expected to give unlimited hypothetical approval for any animal that might be sought by any potential purchaser. Without knowing the specifics of the animal and the person who would be occupying the lot, it could not properly decide the request on the merits of the specific circumstances. But in the current situation, both the prospective occupier and the dog are clearly known. There is no basis not to decide the matter in exactly the same way as if Allen already owned the lot.

Conclusion

[28] I do not consider there is any legal reason why the Body Corporate is not able to consider a request by an owner for a prospective owner to keep an animal in their lot. I am not satisfied that the Body Corporate or any owner has given any reasonable justification to refuse the request for Lindsay Allen to bring a pet onto Lot 8 if he purchases the lot. On that basis I consider the Committee’s decision was unreasonable and the approval should be given.

[29] The approval is subject to Allen purchasing Lot 8, and shall commence when his occupation of the lot commences. The approval is also subject to a range of conditions to ensure that the dog does not adversely impact on any other resident.

[1] See sections 227, 228, 276 and Schedule 5 of the Act

[2] Section 276 of the Act

[3] Section 284(1) of the Act

[4] Section 243 of the Act

[5] See sections 246 and 244 of the Act respectively

[6] Section 248 of the Act

[7] The investigative powers of an adjudicator are set out in section 271 of the Act

[8] The original section 143 of the Act has been renumbered as section 181 and prevents by-laws restricting guide, hearing and assistance dogs.

[9] Pursuant to sections 94(2) and 100(5) of the Act

[10] For example: Sherwood Glen [2005] QBCCMCmr 179, Pivotal Point Residential [2007] QBCCMCmr 21

[11] For example: Bayshore Central [2007] QBCCMCmr 225, Le Parc [2009] QBCCMCmr 55

[12] McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57

[13] Section 167 of the Act

[14] Spinnaker Blue [2012] QBCCMCmr 531 and Spinnaker Blue [2012] QBCCMCmr 532