Helensvale Villas [2007] QBCCMCmr 183 (28 March 2007)

Last Updated: 12 April 2007

REFERENCE: 0955-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7889
Name of Scheme:	Helensvale Villas
Address of Scheme:	11-15 Lindfield Road HELENSVALE QLD 4212

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

the body corporate

I hereby order that, within two months, Bradley Nash, owner of lot 30 (respondent) must remove his dog from the scheme. I further order that, after that time and for as long as by-law 11 remains in effect, the respondent must not bring his dog onto the scheme or permit an invitee to do so.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0955-2006

"Helensvale Villas" CTS 7889

Application

Helensvale Villas Community Titles Scheme (Helensvale Villas) is a 32 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by the body corporate (applicant) seeking orders against Bradley Nash, owner of lot 30 (respondent). The body corporate is seeking an order that the respondent remove his dog from the scheme.

Submissions

The body corporate’s main submissions were to the effect that:

• The respondent is keeping a dog contrary to the by-laws; and
• The committee issued a contravention notice to the respondent but this has not been complied with.

The respondent’s main submissions were to the effect that:

• When purchasing his unit the real estate agent told him that pet ownership was not a problem and pointed out a sign on the driveway stating that "all dogs must be kept on a leash on common ground";
• He took full ownership of his unit on 3 March 2006. He has had his dog for six years and in the last ten months that he has lived at Helensvale Villas he has had no complaints about barking, noise or droppings;
• He is a tradesperson and his dog is a kind natured inside dog and generally goes to work with him in the day time; and
• There are already about six dogs and four cats living at Helensvale Villas.

One other owner has provided a submission. This submission is to the effect that the dog does not bark but it does defecate in the garden and the smell can become unpleasant.

Decision

By-laws for the scheme

The Act gives the owners of units in a scheme the power to vote on what by-laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law. Modifications to the by-laws can be made by special resolution (Act, 62(3)) and take effect on the recording of the modified by-laws by the registrar of titles (Act, 179).

The body corporate has a duty to enforce the by-laws (Act 94(1)). Rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)). Further, by-laws cannot be inconsistent with the Act (Act, 180). In this respect, it should be noted that by-laws cannot prohibit a guide dog accompanying a blind or deaf person while on the lot or common property (Act 181).

Animal by-law

By-law 11 of Helensvale Villas provides:

11 Keeping of Animals
11.1 The occupier of a lot must not –

(a)	bring or keep an animal on the lot or the common property; or
(b)	permit an invitee to bring or keep an animal on the lot or the common property.

11.2 Occupiers with an animal validly approved by the body corporate as at 26 November 2004 shall be entitled to keep the animal until the animal dies or the occupier leaves the scheme. No approval will be given to replace animals that have died.

A search of the records indicates that the above by-law was recorded on 9 March 2005. This is well before the date of 3 March 2006 at which the respondent indicates he purchased his lot.

Requirement to remove dog

The essential problem faced by the respondent is that by-law 11 provides that an occupier must not keep an animal on the lot. The apparent good nature and behaviour of the dog does not assist the respondent because the by-law does not leave any discretion for the committee or the body corporate to authorise the respondent to keep his dog.

In the circumstances, it is reasonable for the body corporate to seek to require the respondent to remove his dog. I consider a reasonable time for requiring removal would be a period of two months to allow the respondent to make alternative arrangements for his dog. I will therefore make an order requiring the dog to be removed from the scheme and kept removed from the scheme as long as by-law 11 remains in effect.

Lack of knowledge of by-laws no excuse

If relocation of the dog results in the respondent suffering loss then he may have a claim against the seller’s agent or any legal representative that assisted him to purchase the lot. This is particularly the case if the respondent was unaware of the by-laws and the required information sheet was not attached to the top of the contract (Act, 206(5)). However, any lack of knowledge of the by-laws does not change the fact that the respondent is bound by the by-laws as if they are a mutual covenant signed under seal (Act, 59).

Order

For these reasons, I make the order above.