Malibu [2006] QBCCMCmr 275 (31 May 2006)

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

I hereby order , in relation to the application by the body corporate against the owners of lot 7, Drew Singleton (respondent), that:

The respondent is authorised to keep the Chihuahua dog that is currently being kept on his lot, this being the only reasonable decision in the circumstances;
This authorisation is subject to a condition that, whenever the dog is on common property, the respondent will ensure it is kept on a lead and that any droppings are immediately cleaned up;

The respondent will also ensure that any droppings on his own lot are cleaned up if he receives complaints from other occupiers about odours; and

This authorisation may be withdrawn by the committee if the dog constitutes a nuisance to other occupiers.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0041-2006

"Malibu" CTS 22174

Application

The applicant has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

"As the committee will not grant permission for the owner of Lot 7 to house his dog there it wants the lot owner (Mr Drew Singleton) to permanently remove the dog from Lot 7".

Jurisdiction

Malibu CTS 22174 is an 8 lot scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). It was created under a Group Titles Plan of subdivision.

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)).

The applicant has provided an extensive chronology of events based on the committee’s recollection of events and documents they have attached.

They state the respondent moved in on 18 October 2005. They advise that some time before that, the Chairperson told the respondent personally, that animals would not be approved. The Treasurer and Secretary state they also made a point of letting the Real Estate Agent know on separate occasions that no animals were allowed. Despite this, the respondent moved in with the dog.

The committee arranged a meeting on 8 November 2005 to discuss the matter with the respondent. They state that at the meeting, the respondent advised he had not been told the dog would not be approved and would not have bought the place had he known. They state they told the respondent either the dog or he and the dog had to go. They state the respondent said he would move for an extraordinary general meeting to vote on the matter, so they gave him some brief instructions on the procedure he needed to follow.

On 14 November 2005 the respondent wrote to the Chairman seeking to keep the dog, pointing out that the dog’s maximum weight would be 1.7kg and at the time was 7 months old. He states that before he moved in, he spoke to a neighbour in Lot 6 who he says did not think the dog would be a problem. The letter to the committee says he has had the dog from 5 weeks old, the dog has had "Bark Busters" training and is very quiet and well behaved. He says the dog is walked twice a day off premises. He says he has spoken to the residents of units 2, 3, 5 and 8 as well who said the dog "wouldn’t disturb, offend or personally upset them as such". He advises he has also spoken to another 9 properties in the street and been advised that his dog is within weight ranges approved in similar complexes. He states he was told that a German Shepherd used to live in Lot 4 of his complex. He undertakes to correct any behaviour problems with the dog immediately. He promises not to replace the dog if it dies. He asks for a general meeting to discuss the matter.

Committee meeting minutes dated 24 November 2005 (attended by Lots 1, 4 and 6) state that they decided unanimously not to approve the dog. This is advised in a letter to the respondent dated 29 November 2005. They note that previous residents had been refused and they do not wish to set a precedent. The minutes note that the respondent may apply for an extraordinary general meeting (with 25% of unit owners signing), but if not done within 7 days, they will issue a Notice of Continuing contravention. The minutes note that if this is not complied within the (as yet undecided) amount of time, a Dispute Resolution Application will be lodged.

On 29 November 2005 the respondent wrote requesting an extraordinary general meeting. On 30 November 2005 the Secretary wrote advising this was rejected as it did not have the signatures of two lot owners. The respondent was given until 7pm 6 December 2005 to try again. They again advise a Notice of Continuing Contravention will issue if this is not done. On 3 December 2005 the respondent asked to meet with the committee. This meeting took place on 11 December 2005.

The committee came prepared for the likelihood the matter would not resolve and this was the case. When the outcome was clear, they handed the respondent a letter dated 11 December 2005, summarising events to date and giving him to 19 December 2005 until a Notice of Continuing Contravention would be issued. The respondent tore the letter up in the committee’s presence.

The committee then sent a copy of the destroyed letter on 12 December 2005, by registered post. A Notice of Continuing Contravention was issued on 2 January 2006, again by registered post. A Dispute Resolution Application was submitted 19 January 2006.

Submissions

Six submissions were received, including one from the respondent. Five of the submissions oppose approval of the dog. Of those five submissions opposing the dog, three are from committee members, one of whom lives next door to the respondent.

The two largest submissions (from the Treasurer and Secretary) largely summarise the grounds detailed above and say that the onus was on the respondent to make the appropriate enquiries regarding animal approval before settling on the contract. The Treasurer alleges the respondent has made statements along the line that:

Submissions opposing the dog include reasons such as buying their unit on the basis pets aren’t allowed, it is cruel to keep a dog in a unit, health considerations (dog droppings), barking (time and extent not specified), the dog might run on the common property if permission is given and this presents safety issues for elderly residents. Extra vigilance would also be required in using driveways.

The respondent submission says he was never advised that pets were not allowed and repeats his perception that his next door neighbour (husband of chairperson) said having the dog approved should not be a problem. He again refers to indications from the Real Estate Agent that a small pet would be allowed.

He advises that the dog has received top class training at a cost of $400 and that he can provide a report card that shows that the dog is loving, submissive and exceptional with his training.

He recounts the events and meetings detailed under the Grounds heading above. His recollection of the exchanges is flavoured with feelings of unfairness and bullying. He alleges that he had a second signature for the purposes of an extraordinary general meeting at one point, but that this person had been intimidated. He denies ever receiving the correspondence of 2 January 2006. He states he would never have bought the place had he known the dog would be a problem and does not believe he should have to choose between his dog and his home. He states he would have liked to discuss the matter in the presence of an unbiased party.

Response to Submissions

The committee has responded reasserting their recollection of events and adding that they questioned the husband of the committee member who is alleged to have said there should be no trouble with the dog. They say he said he did not know what the answer would be.

The committee reiterates that he did not make application before settling. They deny there is a basis for the respondent to have feelings of unfairness or bullying and state the respondent cannot assume how much discussion went on in their deliberations about the dog. They state they are just doing their duty and that they do not know who it was that had been willing to ask for an extraordinary general meeting with him (and therefore they could not have intimidated this person). They state they cannot be held accountable for statements made by a Real Estate Agent.

Determination

I agree that it would be inappropriate to allow the statements of a Real Estate Agent to bind the Body Corporate, when the Real Estate Agent is the agent of the vendor and not the Body Corporate. Further, the committee is quite right in asserting that the respondent should have made appropriate enquiries regarding the animal by-laws. Current by-laws are required to be registered with the Department of Natural Resources and Mines and, when buying into a community titles scheme, it is a regular conveyancing practice to examine the registered by-laws.

One interesting aspect of this matter is what the respondent would have found to be the applicable by-law. For that matter what any prospective owner would have found to apply, had they searched the Department of Natural Resources and Mines, is discussed below.

The Body Corporate of Malibu document the animal by-law (19) as being:

While my final decision does not turn on the following onconsistency, I am having some difficulty confirming the Body Corporate’s understanding of the animal by-law applying to the scheme. I cannot find the registration of any changes to the by-laws in the form of By-law 19, quoted by the committee.

The "Malibu" community titles scheme was originally created pursuant to a group titles plan of subdivision registered on 18 December 1978. At this time the Group Titles Act 1973 was in operation.

The 1973 Act contained a First and Second Schedule, which contained by-laws that applied to bodies corporate. However, the 1973 Act allowed bodies corporate to amend, repeal and make additions to these by-laws. The First Schedule by-laws related to the duties of the body corporate, committee and proprietors, as well as general meeting procedures. The Second Schedule by-laws dealt with building reputation, noise and animals.

Specifically, by-law 2 of the Second Schedule of the 1973 Act provides the following.

(the term ‘council’ refers to the body corporate committee)

The Building Units and Group Titles Act 1980 ("the 1980 Act") commenced on 3 November 1980, and contained a number of by-laws in its Third Schedule. However, the Third Schedule by-laws of the 1980 Act did not automatically apply to schemes existing before the commencement of the 1980 Act. Rather, the transitional provisions provided that for those existing schemes, the by-laws in force before 3 November 1980 continued in force for the scheme, provided the by-laws were not inconsistent with provisions of the 1980 Act (other than the Third Schedule). The by-laws in the Third Schedule of the 1980 Act only applied to the scheme if they were not inconsistent with the existing by-laws for the scheme. It is important to note that under the 1980 Act, bodies corporate were still able to amend, repeal and make additions to the by-laws for the scheme.

The 1980 Act contains provisions specifically dealing with matters contained in the First Schedule by-laws of the 1973 Act. As a result, the provisions of the 1980 Act apply to bodies corporate in preference to the by-laws in the First Schedule of the 1973 Act. Similarly it appears that the by-laws concerning noise and building reputation have also been superseded by the 1980 Act.

In summary, the by-laws for a scheme created under the 1973 Act and continuing under the 1980 Act were-

The current Act (the BCCM Act) commenced on 13 July 1997. It provides that the by-laws in effect at 13 July 1997 continue to apply to the scheme unless the body corporate consents to, and the registrar records, a new community management statement for the scheme recording a change in the by-laws.

I have reviewed NRM records and have been unable to locate any changes in by-laws concerning animals which have been recorded for the "Malibu" community titles scheme. As a result, I consider that the original by-law contained in the Second Schedule of the 1973 Act is the current by-law concerning animals for "Malibu", that being-

As stated above, there is no significant variation in the application of this by-law, compared to the by-law understood to be in force by the committee. However, I now turn to a discussion of the application of a by-law expressed in this way.

By-laws are binding on owners and occupiers of lots included as part of a community titles scheme. In addition, under Section 94 of the Body Corporate and Community Management Act 1997 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 satisfy the adjudicator -

In this instance, the Applicant seems to have interpreted the by-law as saying that animals are prohibited from the scheme land. However the terms of this by-law (and similarly worded by-laws) cannot be properly interpreted to mean that owners and occupiers are not permitted to keep animals in their lots under any circumstances. While it is important for the Body Corporate to adopt a consistent, and therefore fair, policy regarding animals, it is clear that the terms of the by-law provide bodies corporate with discretion as to whether or not to give notice to remove an animal. Adjudicators apply the same principle of reasonableness whether or not the by-law is framed in the terms of seeking consent (to the keeping of an animal), or assumed authorisation of animals (unless notification is given to remove them).

In these circumstances, bodies corporate should not require an owner to remove an animal solely on the basis of a general or historical policy of excluding animals or not approving animals. A "policy" cannot be contrary to the by-law. Rather, bodies corporate should give consideration to the merits of each situation. If the Body Corporate wishes to adopt a strict "no animals" policy the body corporate should give consideration to adopting a by-law that states that.

Therefore in this case, the Body Corporate needs to identify genuine reasons why the dog needs to be excluded, and if they do see concerns, consider ways in which those concerns can be addressed. Given that the Body Corporate must make its determination based on the merits of each situation, the creation of a precedent and blanket rules are not legitimate reasons to exclude the dog.

Based on submissions, the following reasons then remain:

I do not accept that I should base my decision on other owners’ understanding that pets were not allowed, when that understanding was based on a misinterpretation of the by-law. As stated earlier, the by-law may be changed to a no pets by-law by special resolution and then registered as a change to the by-laws. I note that such a change could not be invoked retrospectively.

The statement that confining the dog to the lot is cruel is a value statement, with no supporting authority offered for this opinion. In particular, this statement does not seem overwhelmingly compelling in the case of a 1.7kilogram dog that is walked twice a day.

Any concerns the Body Corporate has in relation to animal waste on the common property, the risk of injury from the dog and greater vigilance while driving, are easily addressed by placing conditions on the dog’s continued residence. These conditions include matters such as requiring the dog to be confined to the lot, leashed while on common property and the removal of any droppings on common property immediately.

In relation to barking and waste, assistance is also provided by S167 of the Body Corporate and Community Management Act 1997 which prohibits occupiers from using their lot in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of other lots. The fact that one of the residents note they have heard the dog bark, does not necessarily establish that the dog’s behaviour has in the past constituted a nuisance or that it will constitute a nuisance in the future. If the dog is causing a nuisance then this provision can be brought to that owner’s attention. If nuisance continues, an application can be brought to this office. Alternatively, complaints can be made to the local council.

Number of Scheme:	22174
Name of Scheme:	Malibu
Address of Scheme:	22 Aquila Court MERMAID WATERS QLD 4218

•	The Second Schedule animal by-law unless there has been an amendment, addition or repeal of the by-law (which should now be recorded by the registrar),
•	The Third Schedule by-laws of the 1980 Act, which are not inconsistent with the applicable by-laws of the Second Schedule of the 1973 Act, and which have not been repealed or amended, and recorded by the registrar, and
•	Any other by-laws that have been recorded by the registrar.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Malibu [2006] QBCCMCmr 275 (31 May 2006)