Surf Breeze [2000] QBCCMCmr 28 (24 January 2000)

C G YOUNGREFERENCE: 0596-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14122
Name of Scheme:	Surf Breeze
Address of Scheme:	3 Rutledge Street KIRRA QLD 4225

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate,

C G YOUNGI hereby order that within three (3) months of the date of this order, the committee must include on the agenda of a general meeting of the body corporate a motion as to whether the current tenants of Lot 1, Sheryn Hodges-Martin and Simon Wardley, may continue to keep the dog currently being kept by them on the lot.

I further order that if the motion fails to pass as an ordinary resolution, then within one (1) month of the date of the relevant meeting Sheryn Hodges-Martin and Simon Wardley, jointly and severally, must remove the dog, and keep it removed, from the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0596-1999

“Surf Breeze” CTS 14122

The applicant is the body corporate which has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), against Sheryn Hodges-Martin and Simon Wardley, the co-tenants of Lot 1, quote -

1.	Animals not to be kept on premises (as per Schedule 2 By-law 10).
2.	Vehicles not to be parked on common property on common property (as per Schedule 2 By-law 2).

A letter from the secretary of the body corporate, Arthur James Metcalf, dated 19 October 1999, provides additional information in specifying the actual orders being sought, namely that –

(a) the dog being kept by the co-tenants on Lot 1 be ordered to be removed; and

(b) the co-tenants of Lot 1 stop parking their motor vehicle, and stop permitting guests to park their motor vehicles, on that area of common property adjacent to the exclusive use area allocated to Lot 1.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

(c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The application concerns a breach of the body corporate by-laws, and has been brought by the committee on behalf of the body corporate against tenants of a lot in the scheme. It therefore meets the jurisdictional requirements of sections 182 and 183 of the Act.

At this stage it is timely to disclose that during the course of a meeting with the secretary of the body corporate, Arthur Metcalf, at the scheme on Tuesday 18 January 2000, he advised me that the dispute concerning the parking of motor vehicles has been resolved and he does not wish to pursue an order for this dispute. Accordingly I do not propose to deal further with the parking matter.

My visit to the scheme on 18 January was notified by telephone to both the secretary (hereafter synonymous with “the applicant”) and the respondent tenants on Friday 14 January 2000. The purpose of my visit was to view the physical layout of the complex, to obtain better information from the parties and to provide an opportunity for the parties to comment on the evidence submitted. Both parties were invited to be present. I had previously telephoned both parties to arrange an earlier mutually convenient time on Thursday 13 or Friday 14 January, but Sheryn Hodges-Martin advised that work commitments prevented either her and her co-tenant, Simon Wardley, being available on either of those two days. The inspection date of Tuesday 18 was subsequently set by myself with adequate notice being given (telephone advice on Friday 14) to provide the opportunity for both parties to attend. Neither of the respondent co-tenants attended the inspection. Accordingly, their written submission constitutes their response to the application.

The supporting grounds in the application are of a general nature and one must look to the attached copies of letters and minutes of committee meetings to establish the details of the dispute. The allegations of the applicant are that the respondent tenants (Hodges-Martin and Wardley) are keeping a dog “Roy” on Lot 1 in contravention of the by-laws and despite having been told to remove it.

Although this application concerns a relatively simple matter, these reasons are necessarily lengthy because there are a number of issues involved that need to be explained.

“Surf Breeze” was registered as a building units plan 21 August 1973 and comprises seven lots. By by-law recorded on the registered plan on 21 July 1993, owners of each lot were granted exclusive use over various designated areas of common property. The wording of the by-law does not specify or restrict the use occupiers may make of the exclusive use areas with the only condition being that each owner must maintain their own area.

Because the scheme was registered some time ago, and there have been various pieces of legislation that have regulated these schemes, I will set out what is the animal by-law relating to the scheme and who is bound to abide by it.

The original by-law governing the keeping of animals on the scheme is that set out in Clause 2 of the Second Schedule of the Building Units Titles Act 1965, the legislation in force at the time, which states -

Animals.

A proprietor shall not keep any animals on his unit or the common property after notice in that behalf from the committee (formerly termed “council”).

Section 5(10) of the transitional provisions of the Building Units and Group Titles Act 1980 provided that the former by-laws of a body corporate continued except for any inconsistency with that Act, apart from the Third Schedule to the Act (which contained remodelled statutory by-laws). Such an inconsistency existed between the new “animal” by-law, By-law 11 of the Third Schedule, and the above by-law. Accordingly the above by-law continued in force. However, there also existed an inconsistency between the above by-law and section 30(5) of that Act. This section stated that “the by-laws for the time being in force bind the body corporate and the proprietors and any mortgagee in possession...lessee or occupier, of a lot”. According although the previous legislation only operated to bind proprietors (see section 13(8)), this section operated to extend the categories of persons who were bound by a body corporate’s by-laws. It operated to remedy the absurdity of the above by-law, and like by-laws, in placing the same duty on all persons residing on a lot. Accordingly, “occupiers” such as tenants were now also bound by the above by-law. The current Act also preserves previous by-laws, while section 53(2) also provides that by-laws bind occupiers as well as owners and others.

Accordingly, the by-law regulating the keeping of animals at “Surf Breeze” is that quoted above, and it is equally binding on occupiers. Under the by-law, occupiers cannot keep a dog on a lot or the common property after notice from the committee to remove it, except in exceptional circumstances (see later).

Before dealing with the facts of the matter, there is an issue that needs to be addressed. All parties (committee, owner, tenants) appear to be under a misapprehension as to the effect of Clause O “Approved Pets” of the tenancy agreement entered into between the registered owner of Lot 1, Christopher Hugh Abraham, and the respondent tenants. This clause reads “Yes – one small dog allowed”. In his letter of 1 March 1999 addressed to the applicant in his capacity as secretary of the body corporate, Mr Abraham stated that if he were to meet the committee’ instructions and tell his tenants to remove the dog, then he would be in breach of the agreement. Mr Metcalf in turn appears to have deliberately waited until he thought the agreement had terminated (a year after they took up residence) before pursuing the dog’s removal – see his letter of 19 May 1999 to Abraham. Also, the respondents have in their submission to this application, largely relied on the clause in claiming that the lease agreement has conferred on them a legal right to keep the dog.

The truth of the matter is that the owner had no authority from the body corporate to give an undertaking that the tenants could keep a dog on the complex. Under the by-law, binding on the owner and the incoming tenants, only the committee (or the body corporate in general meeting as the paramount body) had the power to allow the dog to remain. If as it appears the owner purported to give consent for the respondent tenants to keep the dog, then he had no authority to do so and the clause is void. I would also bring to the notice of the parties the appropriate provisions of the Residential Tenancies Act 1994 and the Residential Tenancies Regulation 1995. Section 45 of the Residential Tenancies Act 1994 states –

By-laws

45. If by-laws under the Building Units and Group Titles Act 1980 or

Body Corporate and Community Management Act 1997 are to apply to the occupation of premises by a tenant, the lessor must inform the tenant of the application of the by-laws, when giving the written agreement to the tenant for signing.

Maximum penalty—20 penalty units.

Clause 22 of Schedule 1 of the Residential Tenancies Regulation 1995 states –

ú

Units and townhouses—s 45

22.(1) The lessor must give the tenant a copy of any body corporate by-laws under the Body Corporate and Community Management Act 1997 that apply to the occupation of the premises or any common area available for use by the tenant with the premises.

(2) The tenant must comply with any of the by-laws that apply to the occupation of the premises by the tenant or to any common area available for use by the tenant with the premises.

In summary, the agreement between Abraham and the respondents to keep a dog on the complex was never binding on the body corporate, and therefore not a factor it needed to consider in deciding whether the dog could stay or be removed. Likewise, it will play no part in my determination of this application. I will now proceed in my determination of the application.

The general approach of adjudicators, and previously the Referee, regarding disputes involving animal by-laws has been as follows.

Most bodies corporate have by-laws preventing the keeping of animals except with the consent of the committee. Adjudicators are often required to determine requests for orders which seek either to have an animal removed, or alternatively, that the refusal of a body corporate (committee) for an owner to keep an animal be overturned. Often owners claim there are "special circumstances" why they should be allowed to keep their animal. The view of adjudicator’s (as was the case with the Referee) is that animal by-laws, like all other by-laws, are to be observed by occupiers. It should not be afforded any special significance simply because it is often the subject of emotional appeals.

General practice is therefore to either order compliance with the by-law (where removal is sought by the committee) or to dismiss the application (where an owner wants the committee's refusal overturned), except where the owner can establish one of two things to the satisfaction of the adjudicator -

•

Firstly, that there has been acquiescence on the part of the body corporate, evidenced by it not taking steps to remove the animal over a reasonable period of time. That is, the body corporate has failed to act on the by-law for some time causing the owner to assume implicit approval to keep the animal. The basis for allowing this exception is that it would be harsh and inequitable for an owner to have to remove an animal that they have been allowed to keep for an extended period of time.

•

Secondly, that the body corporate is acting in a discriminatory manner in seeking to remove the animal. Discrimination in this context can take various forms. The clearest example is where the committee refuses the request of one owner to keep an animal but grants approval to another, without there being any logical or reasonable basis for the distinction to be made. Another example is where the body corporate seeks an order against one owner keeping an animal when there are one or more other owners who are also keeping animals on the scheme, again with no logical or reasonable basis for different treatment. The basis for allowing this exception is that bodies corporate must treat all owners equally.

In this instance the respondent has had the dog on the scheme since around May 1998. The applicant was the only resident owner at the time and, though the dog had caused some nuisance by howling when left alone during the day, he felt unable to formally address the matter until he was elected secretary. On 4 January 1999, as the new secretary, he wrote to the property manager for Lot 1, The Professionals Real Estate, regarding the dog noise. Having received no response, the committee met on 29 January 1999 and resolved to require the three dogs then being kept on the scheme, be removed by their owners. The two dogs kept by other tenants were removed, leaving only the respondent’s dog on the complex. On 19 February the Body Corporate Manager wrote to the owner of Lot 1, Mr Abraham, advising that the dog was being kept in breach of the by-laws. He was again advised on 16 March and again on 19 May that the dog should be removed.

I do not consider that acquiescence is a sustainable ground in this instance. Formal action was not taken until some 7 months after the dog was brought onto the complex, however I do not regard that as being sufficient a period to establish this ground; Adjudicators have only allowed this ground to succeed where the animal has been allowed to remain without restraint over a period of some years. I also note that after the initial request for removal of the dog was made, the committee followed a consistent course in pursuing that objective.

Neither can there be a claim of discrimination as no evidence has been put that the respondents have been treated differently to other occupiers in keeping dogs on the complex. To the contrary, the committee made a decision on 29 January 1999 for all dogs to be removed from the scheme.

However, I have not ordered that the dog be removed outright (as is the usual case) for two reasons. Firstly, notice has not been given directly to the respondents but to them through their landlord, Mr Abraham, the owner of Lot 1. There is no evidence that the respondents have not been aware of the decision for the dog to be removed for some time, but, in conjunction with the fact that it has not been the owners in general meeting who have decided that the dog be removed, I have given the respondents the benefit of the doubt in delaying the removal in case owners wish to decide the matter themselves.

My order is therefore that the question of whether the respondents may keep their dog should be incorporated in a motion to put by the committee to a general meeting of the body corporate within the next 3 months. If the annual general meeting is to be held in that time then there is no need for an additional meeting as the motion can be included in the AGM agenda.

The order is a self-executing one in that, if the motion fails, the order operates to require the respondents to remove the dog from the scheme land within a month of the failure of the motion.

Of course owners must realise that the motion would in effect be implicitly determining the general question of dog ownership within the scheme, for to allow the respondent tenants to keep their dog would obviously give rise to claims of discrimination were others, now or in the future, refused the same privilege.

The respondents have submitted letters from current and previous landlords and neighbours, commenting favourably on the behaviour of the dog. They also state that Lot 1 is the only suitable lot in the complex for keeping a dog as it has a large fenced courtyard (grant area). This is evidence can put to owners if they so wish when the motion is being decided.2n

I would also suggest to owners that they might wish to review their by-laws, perhaps by adopting those currently set out in the Second Schedule to the Act, but of course retaining the existing exclusive use by-law.