Helensvale Villas [2003] QBCCMCmr 278 (9 December 2003)

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

I hereby order that the body corporate secretary shall list a motion on the agenda of the next general meeting seeking body corporate approval for the owner of lot 28, Sally Fielding, to keep the cat currently being kept by her on her lot.

I further order that a copy of this order and the accompanying reasons shall be included with the agenda papers for the next general meeting.

I further order that both the respondent and the body corporate committee shall be entitled to include an explanatory note in respect of the above motion with the voting paper for the next general meeting, in each case not to exceed one hundred (100) words.

I further order that this order is self-executing in accordance with the decision of owners on the motion, in that if the motion fails to pass, the owner of lot 28, Sally Fielding, must immediately remove her cat from the lot and must not afterwards bring or allow any animals to be brought onto her lot or the scheme generally without the prior written approval of the body corporate.

I further order that until the above motion is considered at the next general meeting, the owner of lot 28, Sally Fielding, shall be permitted to retain the cat currently being kept by her on her lot.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0339-2003

"Helensvale Villas" CTS 7889

APPLICATION

This application was made by the Body Corporate for Helensvale Villas, (applicant) on 28 May 2003 under the Body Corporate and Community Management Act 1997 (Act), pursuant to a resolution of the committee on 7 May 2003. The applicant sought an order against Sally Fielding, owner of lot 28 (respondent) to "remove an unapproved pet (cat) from the scheme".

Helensvale Villas community titles scheme (Helensvale Villas) consists of 32 lots and common property. The community management statement for Helensvale Villas indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme.

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the respondent and to all owners, with an invitation to respond to the matters raised in the application. A submission was made by the respondent and one other owner. The applicant did not avail itself of the opportunity to inspect the submissions received or make a written reply (see sections 246 and 244 of the Act).

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

JURISDICTION

This is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 of the Act).

Section 276(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:

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

MATTERS IN DISPUTE

The application relates to the respondent’s keeping of a cat which the applicant asserts is contrary to the by-laws of the scheme. The facts of the dispute, as outlined in the application and submissions, can be summarised as follows.
The respondent purchased a lot at Helensvale Villas in September 2002. In November 2002 the applicant advised the respondent that it had become aware that she had a cat, sought confirmation of this, and advised her of by-law 11, as follows:

(b) Permit an invitee to bring or keep an animal on the lot or common property."

The respondent confirmed that she had a cat. The applicant then advised her that the matter would be considered at the next committee meeting but that approval for the cat was unlikely in light of the result of previous applications. In early February the respondent wrote formally requesting approval. Following a committee meeting on 10 February 2003, the applicant issued a notice of continuing contravention of a by-law on 19 February 2003. When the cat was not removed, the committee resolved to bring this application at a meeting of 7 May 2003.

The respondent asserts that when she purchased the lot she had advised the real estate agent and the selling owner that she had a cat. She claims that they indicated that there shouldn’t be a problem as there were other pets in the complex. She says that she did not receive a copy of the by-laws until after moving into her unit and did not realise that she required written permission.

The committee minutes relating to this matter shed little light on the basis for the committee’s decisions. On request, the secretary advised that "The committee has felt for some time that the keeping of pets in the scheme is not appropriate and gives rise to many disputes." The respondent alleges that the body corporate manager advised her that pet decisions were made on a case-by-case basis but that there had been some problems with previous cats. She also indicates that the body corporate manager gave the basis of refusal of her cat as that the Body Corporate was trying to change the by-laws and did not want any new animals. The applicant advises that it considers that changing the by-laws would be desirable, but that it is unable to justify the additional expense involved in preparing and amending a new community management statement.

The respondent argues that there are several other animals in the scheme including several dogs. Following an inquiry by this Office, the applicant reports that, to the best of its knowledge, there is currently one dog in the scheme, which is approved on the basis that it cannot be replaced after its death. There are apparently three cats, one being the respondents’ and two others in respect of which the applicant is taking further action.

The respondent suggests that she may not have purchased the unit if she thought that her cat would not be allowed. She says there have been no complaints regarding the cat, which is over 10 years old and only leaves the lot occasionally (never at night). Correspondence from two other owners is included in the submissions, and both indicate no objection to the respondent’s cat.

DETERMINATION

The general approach of adjudicators 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 previously) is that animal by-laws, like all other by-laws, are to be observed by owners and occupiers. It should not be afforded any special significance simply because it is often the subject of emotional appeals. The general practice, therefore, 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, 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. 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 this exception is that bodies corporate must treat all owners equally regarding the enforcement of by-laws.

In addition to these principles, adjudicators may also generally consider whether or not the body corporate is acting reasonably in its application of the by-laws in accordance with its functions and obligations under section 87 of the Act.

I do not consider that the applicant body corporate has acquiesced in any breach of by-laws by the respondent. The applicant took action in regard to the respondent’s cat soon after the respondent moved into the scheme and apparently as soon as it was aware of the cat.

While the respondent suggests that she did not receive the by-laws until after she moved in, and that the agent and seller represented that a cat would be no problem, it is incumbent upon owners to acquaint themselves with the by-laws of the scheme. It is not sufficient for the respondent to argue that she did not know that she needed to make an application to have a cat, as the by-laws clearly refer to the requirement of "prior written consent of the Body Corporate".

The apparent approval of other pets in the scheme does raise the potential for discrimination. In this case it appears that the committee has generally refused permission for pets and taken action to remove pets that have been brought onto the scheme. However a dog has been approved in lot 24 (the applicant has not outlined the reasons for this approval or when it is given). It is also noted that, for reasons that are not clear in the material provided by the applicant, approval for a cat in lot 19 on a three month trial was given in August 2002 but some time after the end of the trial period the committee sought the removal of the cat.

It seems that the committee is now taking an approach of refusing all applications for pets. While there is no reason why a committee may not change its approach to pets over time, I would caution it against pursuing a strict ‘no pets’ policy. Unless and until an amendment is made to the by-laws preventing animals entirely, the current by-laws do not prohibit pets. Rather, the by-laws give the body corporate discretion to allow pets.

It is appropriate for a committee to have clear and reasonable policies to guide the exercise of its discretion in this regard. But the committee must still exercise its discretion and consider each application on its merits. In the context of the current by-laws is not reasonable for a body corporate to rigidly apply a ‘no pets’ policy without consideration of individual circumstances.

Conclusion

In the circumstances I am not convinced that there is sufficient evidence to determine that the committee has acted unreasonably, to warrant dismissing the applicant’s claim entirely. However, I am also concerned that the applicant has not demonstrated that it has considered the respondent’s application to keep a pet on its merits rather than strictly enforcing its apparent ‘policy’.

I am also mindful that no evidence has been provided to me that the approach to pets has been considered by owners at a general meeting. Moreover, with the limited number of submissions, it is difficult to gauge the general feeling in the scheme in regard to pets. Given the number of applications for pets, it may be that many owners are not averse to having pets within the scheme.

Accordingly, I have determined that the most just and equitable approach to resolving this dispute is for the body corporate in a general meeting, which has a paramount decision power over the committee, to decide whether the cat should be allowed to remain in the scheme or not. That is, all owners eligible to vote will have the opportunity to review the decision of the committee not to approve the cat in question. The order will be self-executing, meaning that if approval is not given then the respondents must remove her cat and keep it removed, but if the motion passes then the respondent will be able retain her cat.

To assist all owners to make an informed vote on the matter, I have included in my order that the secretary send a copy of this order and the statement of reasons to each owner. I have ordered that both the respondent and the body corporate (committee) be allowed to include an explanatory note with the voting paper, in each case not to exceed one hundred (100) words. This will enable each party to present their case to all owners.

Unless otherwise agreed at the meeting, any approval granted by the body corporate at the meeting shall refer to the cat currently in dispute. Upon the cat’s death, the respondent shall not be entitled to replace it, unless she first makes a fresh application to the body corporate committee and obtains their written consent to the replacement pet, prior to her acquisition of a replacement.

I have made an order permitting the respondent’s cat to remain in the scheme until such time as the motion to determine whether the cat may remain or not is considered at the next general meeting. However, I have not ordered that an extraordinary general meeting be called specifically to consider this motion because I am mindful of the expense that this would incur for owners.

Furthermore, while I have not ordered it, I would encourage the body corporate to consider the approach to pets more generally at the next general meeting. Specifically, the committee should consider whether a motion should be put to amend the by-laws to reflect its preferred approach on this issue. If passed and registered, this would ensure that all prospective owners are clearly aware of the acceptability of pets within the scheme, and would enable the committee to enforce the by-laws with certainty.

Number of Scheme:	7889
Name of Scheme:	Helensvale Villas
Address of Scheme:	11 Lindfield Road HELENSVALE QLD 4212

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Helensvale Villas [2003] QBCCMCmr 278 (9 December 2003)