Banya Lodge [2002] QBCCMCmr 568 (11 September 2002)

DJ ReardonREFERENCE: 0407-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1795
Name of Scheme:	Banya Lodge
Address of Scheme:	60 Banya Street, BRIBIE ISLAND QLD 4507

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

the Body Corporate for Banya Lodge community titles scheme 1795


I hereby order that within 4 weeks of the date of this order, the Owners of Lot 4, must remove and keep removed the dog and cat currently being kept by them on scheme land.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0407-2002

“Banya Lodge” CTS 1795

1. Order sought

The Applicant, the Body Corporate for “Banya Lodge”, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the BCCM Act”), quote-

“The order the Body Corporate is seeking is the removal of animals brought to the complex by the new owners of Unit 4 Mr and Mrs D Hoskins contrary to advice given prior to their purchase that animals were not allowed.”

Section 223(1) of the BCCM 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 BCCM Act or the community management statement; or
b)	the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or
c)	a claimed or anticipated contravention of the terms of, 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 “Banya Lodge” community titles scheme consists of 4 lots, and common property. The community management statement for the scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

2. Application and submissions

This dispute resolution application was made on 12 July 2002. On 1 August 2002, the Commissioner for Body Corporate and Community Management (“the Commissioner”) invited all owners of a lot included in the scheme to make a written submission about the application.

The Owners of Lots 2, and 3, and the Occupier of Lot 1 have made written submissions about the application, as have the Respondents to the application, the Owners of Lot 4.

On 6 September 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

3. By-laws

This application concerns the desire of the Respondents to keep animals on the scheme land, specifically, a pet cat (a tabby) and a pet dog (a beagle cross). The keeping of animals is a matter that is normally dealt with in the by-laws of a body corporate.

The “Banya Lodge” community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan of subdivision), which was registered on 3 August 1994.

At that time, the Building Units and Group Titles Act 1980 (“the BUGT Act”) applied to the scheme. In accordance with section 30 of the BUGT Act, the by-laws set out in schedule 3 of the BUGT Act became applicable to the “Banya Lodge” Body Corporate.

By-law 11 of schedule 3 of the BUGT Act provides for the keeping of animals in the following terms,

“11 Keeping of animals

Subject to section 30(12), a proprietor or occupier of a lot shall not, without the approval in writing of the body corporate, keep any animal upon his or her lot or the common property.”

The reference to section 30(12) is a reference to a provision of the BUGT Act that exempts guide dogs from the operation of by-laws restricting the keeping of animals.

The BCCM Act commenced on 13 July 1997. As a result of the transitional provisions of the BCCM Act (see section 285(5)(a)), the above by-law continues to apply to the “Banya Lodge” Body Corporate.

It is apparent that the Owners of Lot 4 do not have the Body Corporate’s written approval for keeping animals in accordance with the above by-law. This application therefore becomes a question of whether or not the Body Corporate has acted reasonably and lawfully, in requiring the Owners of Lot 4 to remove their animals from the scheme land.

4. Approach of referees and adjudicators to disputes regarding animals

At this point, I would like set out what has been the general approach of adjudicators, and previously the Referee, regarding disputes involving animal by-laws.

General practice is to either order compliance with the by-law (where removal of an animal is sought by the body corporate), or to dismiss the application (where an owner or occupier wants the body corporate’s refusal to grant approval for the keeping of an animal overturned), except where the owner or occupier 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 in not taking steps to remove the animal for a reasonable period of time. For example, the body corporate has failed to act on the matter for some time causing the owner or occupier to assume implicit approval for keeping the animal. The basis for this exception is that it would be harsh and inequitable for an owner or occupier to have to remove an animal that they have been allowed to keep over a 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, and there is no logical or reasonable basis for the distinction to be made. An alternative 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 the different treatment. The basis for this exception is obviously that bodies corporate must treat all owners and occupiers equally regarding the enforcement of by-laws.

5. Determination

It appears that the Respondents became the Owners of Lot 4 in late May 2002. It appears that the Body Corporate approached the Respondents soon after becoming owners regarding the animals. I have been provided with a copy of a letter to the Respondents from the Body Corporate Manager dated 5 June 2002, enclosing a copy of the by-laws, and seeking confirmation that alternative arrangements are being made for the animals. It is my view from the material before me that the Body Corporate has not acquiesced to the keeping of animals by the Respondents.

However, the Respondents do raise the point that an owner has previously been given approval to keep an animal on scheme land. From the material before me, I understand that the Owner of Lot 2 had been permitted to keep a dog on the scheme land in 1994. It appears that even at this time, the Body Corporate had taken a position that animals were not to be kept on scheme land, but made an exception for the Owner of Lot 2 on the basis that the Body Corporate had only recently resolved to enforce the by-law. It is also evident that the approval was conditional upon the animal not being replaced, and the dog passed away approximately 12 months later.

I consider that it is acceptable for a Body Corporate to change its position regarding animals over time. In my view, the application of by-laws should be in accordance with the needs of owners and occupiers at the time, provided that the by-laws are always applied equitably. In this case, I consider that the Body Corporate has taken a consistent view of the keeping of animals on scheme land. Further, I do not consider that an exception made for an owner some 8 years ago can reasonably raise any serious question of discrimination in the context of the current application of the animal by-law.

The Respondents’ main argument in support of their request to keep animals on scheme land concerns purported comments made to them by the Real Estate Agent involved in the sale of Lot 4. The Respondents assert that as a result of these comments, they believed that if they purchased Lot 4, they could keep their animals. The Respondents indicate that this was a major incentive for them to purchase Lot 4, and it is evident that upon realising that they would not be permitted to keep their animals, they unsuccessfully attempted to terminate the contract of sale.

The Respondents have provided a copy of a document apparently written by the relevant real estate agent, which purportedly described the discussion in question as follows,

“On the initial inspection after quite some time and after making it apparent to me that they really liked the property. Mrs Hoskin asked me if a dog would be allowed (No mention was made of a cat at this time.) I said that I didn’t know, but I would find out. I immediately phoned our office and spoke to the listing agent Keith Williams who rang the vendor Mr Spethman.

Keith told me that the vendor said there had been a dog in one of the villas in the past and Mr Spethman had said that in his opinion there was nothing in the body corporate regulations against pets. I passed this information on immediately to Mrs Hoskin exactly as it had been told to me above”.

I do not intend to make any determination of whether or not the real estate agent or the vendor misled the Respondents, deliberately or otherwise. However, in any event, it is clear that information in the above statement, whether or not it originated from the Vendor, was wrong. As stated above, there is a by-law in place for the “Banya Lodge” Body Corporate that restricts the keeping of animals on scheme land.

While the Respondents may have been provided with incorrect information in this case, I do not consider that the Respondents are completely resolved from responsibility for the situation. In my view it is prudent, if not essential, for a purchaser to verify statements made to them, particularly if the statement relates to a matter of importance to the purchaser.

In an attempt to better inform purchasers of lots in a community titles scheme about Body Corporate issues, section 163(5) of the BCCM Act requires that an information sheet in the approved form be attached to the contract as the first or top sheet. This information sheet is titled Contract Warning and among other things, suggests that purchasers of lots in a community titles scheme check the by-laws for the scheme, and refers to an example of a by-law prohibiting the keeping of pets without the permission of the Body Corporate. This warning should have alerted and prompted the purchasers to verify the by-laws for the scheme prior to signing the contract

While I have sympathy for the Respondent’s situation, in my view, the Body Corporate is entitled to, and has a duty to enforce the by-laws for the scheme. I consider that the ability of a Body Corporate to enforce its by-laws cannot, and should not, be fettered by statements made by real estate agents or vendors of lots, notwithstanding that the statements may be erroneous. To allow this to be an excuse for non-compliance with the by-laws would leave bodies corporate at the mercy of statements made by persons with no capacity or authority to make representations on behalf of the body corporate. As such, I intend to grant the order sought by the Body Corporate.

6. Conclusion

Disputes concerning the keeping of animals on scheme land can be very emotive and difficult to resolve. I have no doubt that the Respondents’ animals are an important part of their lives, and that this situation has been very difficult for them. However, in this case, and for the reasons outlined above, I consider that the Body Corporate has acted reasonably, and in accordance with its lawful functions in enforcing the by-laws for the scheme.

I am aware that it may be difficult for the Owners of Lot 4 to make alternative arrangements for their pets, therefore I intend to allow them 4 weeks from the date of this order to remove their pets from the scheme land.