Sherwood Glen [2005] QBCCMCmr 179 (1 April 2005)

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

I hereby order that the body corporate shall include on the agenda of its next general meeting, a motion that the owner of lot 24, Alice May Wright, shall be permitted to keep her 14 year old Maltese Bicheon dog on her lot on such conditions as the body corporate might reasonably impose.

I further order that pending consideration of such motion, the owner of lot 24, Alice May Wright, shall be permitted to keep her 14 year old Maltese Bicheon dog on her lot provided that she does not permit the dog to cause a nuisance to any other lot owner, and further provided that she does not allow the dog to enter upon the common property unless it is on a leash and accompanied by a responsible person.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0768-2004

"Sherwood Glen" CTS 20173

ORDER SOUGHT

The applicant, Alice May Wright, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

I hereby request that I be given permission to keep my elderly dog within the confines of my property for the rest of her life.

JURISDICTION

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

(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)).

SCHEME DETAILS

The "Sherwood Glen" community titles scheme consists of 21 lots and common property. Titles Office records reveal that the scheme was created under a group titles plan of subdivision (now known as a standard format plan), which registered on 4 September 1992 under the provisions of the Building Units and Group Titles Act 1980 (BUGTA). The records further reveal that on 6 June 2000, and in accordance with the BCCM Act, a community management statement was recorded for "Sherwood Glen". The community management statement states that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 ("the Accommodation Module") applies to the scheme.

BACKGROUND

The applicant stated that when she purchased her lot in the scheme in August 2004 she was advised that she would not have any problems having her 14 year old dog living in her lot with her. The applicant, who is also the resident unit manager, further stated that she would not have purchased the property if she thought there would be a problem.

The applicant explained that after the committee refused her request to keep the dog in her lot, it was too late for her to withdraw from the purchase. The applicant then arranged for a friend to care for the dog for a period of time, but had to change her plans when the dog became fretful and unwell. The applicant stated that the fact that she has her dog in the lot without body corporate approval is causing her considerable distress, but she is equally distressed at the thought of having to remove the dog, as the committee has resolved that she should do.

The body corporate committee and all owners in the scheme were invited to respond to the application.
Submissions were received from 7 owners (two of whom were also committee members) and from the body corporate committee, through the body corporate manager. The committee opposed the application.

Two owners had no objection to the applicant’s dog being present in the lot with her.

Three other owners considered that an exception should be made for the applicant on the basis that the dog is very old and that it is not replaced when it dies; that the applicant was given incorrect information at the time of purchase; and that the presence of the dog is not treated as a precedent.

The two owners who are members of the committee opposed the application.

The applicant replied to the submissions and included 10 statements from persons who stated that they had no objection to the applicant’s dog living in the lot with her. Of these 10, one was from an owner/occupier, one was from an absentee owner, and 8 were from tenant occupiers. The owner/occupier’s lot was directly opposite the applicant’s lot, and therefore one of the lots most likely to be affected by the presence of the dog, if it were to be a nuisance. Several of the tenant occupiers who provided statements also lived in close proximity to the applicant’s lot.

DETERMINATION

The body corporate legislation allows bodies corporate to adopt by-laws, which in general terms, may provide for the administration, management and control of common property and body corporate assets, as well as regulating the use and enjoyment of lots, common property, body corporate assets, and any services and amenities supplied by the body corporate (section 169 of the BCCM Act). The keeping of animals on scheme land is a matter that is commonly dealt with by body corporate by-laws.

By-laws for particular bodies corporate are stated in the community management statement applying to the scheme. In accordance with section 59(2) of the BCCM Act, the community management statement for a community titles scheme (including the by-laws), is binding on the body corporate, and the owners and occupiers of lots included in the scheme.

One of the general functions of bodies corporate is to enforce the community management statement (including the by-laws) for the scheme (section 94(1)(b) of the BCCM Act). However, it is important to note that bodies corporate must act reasonably in carrying out their general functions, including the enforcement of by-laws (section 94(2) of the BCCM Act).

In this instance, the body corporate committee has refused the applicant’s request to keep her dog within her lot. The committee relied upon by-law 14, which provides:

As stated above, by-laws are binding on owners and occupiers of lots included as part of a community titles scheme. In addition, bodies corporate have a duty to reasonably enforce the by-laws.

In most instances of owners or occupiers breaching animal by-laws, adjudicators will order compliance with the by-law, except where the owner or occupier can establish one of two things to the satisfaction of the adjudicator -

In addition 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 94 of the Act.

I note that in the submissions which opposed the application frequent reference was made to the "no pet policy" in the scheme. It was also this "policy" upon which the committee relied at the committee meeting held on 29 September 2004 when considering the applicant’s request to have her (at that time) two dogs living in her lot. The committee resolved to deny permission to the applicant in relation to her dogs based upon the "policy".

The reference to the "no pet policy" highlights the general misunderstanding about animal by-laws which are written as by-law 14 is written. Many owners believe that such a by-law means that animals are prohibited, whereas in fact what the by-law means is that animals may be allowed, provided that the committee’s consent is first obtained.

Of course, in practice some bodies corporate with such a by-law may decide to never give consent to any animals, as appears to be the case here, however, if that is the body corporate’s stance on animals, then in my view the by-law should be written to make it clear that animals will not be allowed under any circumstances, rather than appearing to give the committee discretion to approve animals, when it has no such intention of ever doing so. Furthermore, written as it is the by-law gives no hint to a prospective purchaser as to what the body corporate "policy" might be in relation to animals.

One of the owners who opposed the application concluded her submission as follows:

As an owner I would like to see the no pet policy enforced and the authority and wishes of the body corporate upheld. I trust you will make the right decision for the entire complex.

Whilst I am not satisfied that the applicant has been discriminated against, nor am I satisfied that there has been acquiescence on the part of the body corporate, there are a still a number of matters about which I have some concern in relation to whether the body corporate has acted reasonably in its enforcement of the by-laws.

My first concern is that the applicant stated in the application that she was advised that she would have no problems in having her dog living with her, and further stated that she would otherwise not have purchased the business and her lot. The applicant did not elaborate on this statement in her application. However, on 30 March 2005 at my request a member of the Commissioner’s staff, Ms Christine Wilson, telephoned the applicant to obtain further details in this regard. The applicant advised Ms Wilson that she had been assured by the real estate agent as well as by the previous owners of her lot (the previous managers) that there would be no problem in having a dog. The applicant denied the statement by one of the committee members that she had been advised by the previous managers that the body corporate would not allow her to have an animal in the complex. Of course it is entirely possible that the previous managers have said one thing to the applicant, and something else to the committee member.

My second concern is that the owner of lot 3 also stated in her submission, that she had been informed by a real estate agent that small pets were allowed in the scheme. This owner further stated that it was irrelevant to her as she did not have a small pet and did not intend to acquire one, but she considered that in the circumstances an exception should be made for the applicant, particularly given the age of her dog.

My third concern is that by-law 14, prima facie, is a permissive by-law rather than a prohibitive by-law. In other words, a reasonable person reading the by-law would, in my view, be entitled to consider that whilst an animal was not allowed as of right, it could be allowed with the consent of the committee and the imposition of conditions as to its presence in the scheme (such as, for example in this case, that it not be replaced when it died). Unless a prospective purchaser searched the body corporate records exhaustively, and read the minutes of every meeting, there would be no way of ascertaining that the body corporate had a "no pets policy".

I have noted the committee’s remarks concerning the applicant’s position as resident manager, and whilst I accept that her role in that position entails policing of the by-laws, I do not consider that she should be prevented from having her application in relation to her dog properly considered by the body corporate.

I therefore propose to order that the applicant’s application to keep her dog in her lot shall be reconsidered by the body corporate at a general meeting. If the application were rejected, the applicant would have the right to make a further application to this office to overturn the decision if she considered that owners had acted unreasonably in doing so.

Number of Scheme:	20173
Name of Scheme:	Sherwood Glen
Address of Scheme:	4 Sherwood Close MUDGEERABA QLD 4213

i.	given on conditions, and
ii.	withdrawn at any time

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Sherwood Glen [2005] QBCCMCmr 179 (1 April 2005)