Summer Place [2003] QBCCMCmr 55 (8 August 2003)

Last Updated: 17 May 2005

REFERENCE: 0079-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20119
Name of Scheme:	Summer Place
Address of Scheme:	97-110 Edmund Rice Drive SOUTHPORT QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Renata Foster, the occcupier of lot 5

I hereby order that the occupier of lot 5, Renata Foster shall be authorised to keep the dog which she currently has on the lot, whilst she is an occupier of a lot within the scheme, but that in the event of the death, it is not to be replaced with any other animal. I further order that the occupier of lot 5, Renata Foster shall ensure that the dog is kept upon the lot, and is not allowed on common property unless on a lead and accompanied by an occupier of the lot, and that the dog does not cause any nuisance to other occupiers through excessive barking.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0079-2003

"Summer Place" CTS 20119

The applicant, Renata Foster, the owner of lot 5 has sought the following order of an adjudicator under the provisions of the Body Corporate and Community Management Act 1997 (the Act), quote -

I believe body corporate should let me keep this dog due to no information for this matter was not presented when the law was implemented. Contacting the owners from lot 5 asking their permission on this matter should be addressed. We would like to keep the dog for the progression of Cody’s health.

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-

(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 the Act or the community management statement; or

(c) a claimed or anticipated contractual matter 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)).

In her grounds the applicant states that she has lived at the scheme for 8 years, and initially had a cat, which they replaced with a dog in consequence of the "cat ... causing Cody health problems through shedding its fur". The applicant states that a doctor suggested a pet could help with her son’s health problems. The applicant states that "we decided to get a toy poodle, which didn’t shed hair and was small / quiet and clean". The applicant then states that –

Evidently between the cat and getting the dog, the body corporate rules were change(d). Mr and Mrs Yann who are acting as a(sic) agent for the owners of the complex neglected to issue me with a copy of the body corporate rules after they had been changed. I was totally unaware of the change in the body corporate policy of no animals to be kept in the complex and where as next door neighbours have a small dog and have had for the past 3-4 years.

The applicant claims that she has only just been issued "with the new (now somewhat dated) Body Corporate Rules" but "have had the dog now for about six months" and "my son has bonded with the animal". The applicant further states that she didn’t seek approval for having a dog because she previously had a cat.

This office sought submissions from all owners and the body corporate committee regarding the application. Of the 135 lots, only a limited number (8) submissions were received from owners. Those submissions run approximately 2:1 against the application. The body corporate committee submission also opposes the application, and provides the following information -

• The applicant has been in occupation at the scheme since December 1998, firstly at lot 7 and then at lot 5 on 7 April 2001. However, the tenancy agreements attached by the body corporate (dated 30 December 1997) suggests that the applicant took up occupation in December 1997, not 1998. Moreover, the initial tenancy agreement states "no" in respect of approved animals;
• Through various meetings in 1998, the body corporate purported to change its policy on animals, from one of approval, to one of prohibition, with existing animals being allowed on the basis that they were registered with the body corporate;
• A circular dated 18 August 1998 advising of the prohibition of animals was provided to all residents;
• The body corporate states that this prohibition was thereafter included in "house rules" which now provide "Animals are not permitted to be kept on the complex, with the exception of those which were given permission prior to this by-law".

In the circumstances, I consider there are some significant deficiencies in the body corporate’s argument for requiring removal of the dog. As part of the applicant’s evidence, she includes a copy of the "house rules" which she states she was given at the time of moving in. This document does not prohibit animals, but rather states that permission must be obtained from the committee to keep an animal. There is no evidence before me that the applicant in fact received the circular or an amended copy of the house rules.

Secondly, all owners and occupiers have an obligation to observe the recorded by-laws. By-laws do not include "house rules". "House rules" have no status. This is because they are not a recorded document capable of search. An inclusion of a house rule prohibiting animals does not effect such a prohibition. Only a change of by-laws, or if the by-law is sufficient to contemplate a change of policy, then very clear evidence of a change in body corporate policy will suffice. Clearly there was no change in the relevant body corporate by-law. It always provided, and continues to provide that –

Subject to section 143 of the Act, an owner of a lot shall not without the approval in writing of the committee, bring or keep any animal or permit an invitee to keep any animal upon his lot or the common property ...

So what then are the actions of the committee evidencing a very clear change of policy regarding animals? The body corporate apparently adopted this policy at its committee meeting on 11 June 1998, and confirmed approval for certain animals at the committee meeting on 7 October 1998.

The body corporate submission states that the applicant was given permission to keep a cat upon entering a tenancy agreement in December 1998. This date is after the prohibition supposedly came into effect, and if correct, suggests that the prohibition is not being enforced whatsoever. Alternatively, as I have already noted, the tenancy agreements included suggest that the tenancy in fact stated in December 1997. If this is so, and permission for the cat was given at this time, then it proceeds the commencement of the prohibition. I suggest that the body corporate should get its facts straight in its submission. It should not be for me to correct basic points like this which are materially relevant to the body corporate’s case. This date is crucial to the body corporate’s submission. For the body corporate’s prohibition policy to have any significance, the body corporate needs to show that its initial permission for the keeping of a cat was given before the change in policy.

There is no clear evidence however that the permission for the cat was given straight away. In fact, there is evidence to the contrary. The second tenancy agreement with the applicant dated 29 June 1998 states in item O, "approved pets No". So it seems from this that the applicant did not have a cat as at 29 June 1998. The relevance of this is two fold –

• Firstly, it suggests that the body corporate’s statement that the applicant was given permission for a cat upon initially entering her tenancy in December 1997 is incorrect; and
• Secondly, that the applicant did not obtain her cat until at least after 29 June 1998 as the tenancy agreement of that date states no approved pets whereas subsequent tenancy agreements in 2001 state that permission was given for a cat.

I can only conclude therefore that the applicant obtained her cat, and was given body corporate permission for it, after the supposed change in policy. If this weren’t the case, then why wasn’t the applicant’s lot number and name included on the list of "approved" animals at the committee meeting on 7 October 1998. Even if the applicant hadn’t registered for approval, I consider that the body corporate had an obligation to look through its records and check what approvals had been given up to the time of the intended prohibition.

Whilst this is all somewhat esoteric, the conclusion that I come to is that on balance the body corporate’s arguments for removal of the dog are unsatisfactory. I conclude that there is no evidence that the body corporate has clearly evidenced and enforced its change in policy regarding animals. Rather the evidence would suggest that at least some of the actions of the body corporate have been inconsistent with this policy. If the body corporate is serious about prohibiting animals, I suggest it should effect a change in its by-laws to specifically prohibit animals.

I acknowledge that the applicant has failed to seek permission for the dog. However, I note that the applicant’s explanation that, having previously been given permission for a cat, that she considered the permission for a dog to be interchangeable with this. Whilst this is not completely satisfactory, I consider that the body corporate has not been detrimentally affected by this. Formerly, the applicant had permission for a cat. This has been replaced with a dog. The end result is that there is one animal on the lot.

In the circumstances, I intend to order that the applicant shall be authorised to keep the dog which she has on the lot, whilst she is an occupier of a lot within the scheme, but that in the event of the death, or removal of the dog, that it is not to be replaced with any other animal. Further, I intend to order that the applicant shall ensure that the dog is kept upon the lot, and is not allowed on common property unless on a lead and accompanied by an occupier of the lot and that the dog does not cause any nuisance to other occupiers through excessive barking.