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Pet Approvals – Is it Better to Seek Forgiveness than Ask Permission?

It’s an increasingly common, but increasingly disappointing, phenomenon – owners bringing their pets into a Community Titles Scheme before obtaining a Pet Approval. The “conventional wisdom” seems to be that because a Body Corporate can’t refuse a Pet Approval these days (after all by-laws banning pets are void aren’t they?) why not simply bring your pet home and then apply for approval?  This approach follows the old mantra of “sometimes it is better to ask forgiveness than permission”.

A Noosa Lot Owner who did this recently has learned, the hard way, that it is better to ask (and receive) permission first. On 22 July 2020 in the Noosa Magistrates Court a Lot Owner who brought their pet dog home before receiving Body Corporate approval was successfully prosecuted for a breach of a future contravention notice (of by-laws), fined $300 and ordered to pay the Body Corporate’s legal costs of $830.80.

The Lot Owner in question had brought their pet dog into their Lot many months before. The dog was frequently seen on the unit balcony. The dog had even escaped on to the common property and wandered around the scheme on at least one occasion. The Body Corporate had put in place a strong pet by-law which included decision-making criteria and minimum conditions. The decision-making criteria included that if the pet had already been brought on to scheme land the application for Pet Approval need not be approved (or progressed) until the pet was first removed.

The underlying rationale was that if a Lot Owner could not demonstrate compliance with the by-laws before they received an approval, how likely were they to be to comply with the terms of a Pet Approval if given?

The Lot Owner was issued with by-law contravention notices (Future Contravention Notices) and breached them. Particularly, the dog was not removed from scheme land and it escaped again.

Stratum Legal Pty Ltd, as the Body Corporate’s Solicitors, brought a complaint and summons under the Justices Act, which was then served on the Lot Owner. The Lot Owner was summonsed to appear before the Magistrate to answer the complaint.

In advance of the hearing of the complaint, the dog was removed from the unit. As a result, the Body Corporate sought only a nominal fine ($300) but on the basis that half of the fine was to be paid to the Body Corporate plus the Body Corporate’s legal costs. The Magistrate made the Orders requested and luckily for the Lot Owner, did not record a conviction.

Breaching by-laws is a serious matter. The by-law contravention notice process is simple and straightforward. The step often not taken by Bodies Corporate is to prosecute a recalcitrant Occupier who continues to breach the by-law after having received a contravention notice.

The unenforced law is the one which goes unobserved. It is one of the Body Corporate’s general functions to enforce the by-laws for a scheme in the way provided under Body Corporate and Community Management Act 1997.

While the by-law enforcement process may appear daunting, with the assistance of Stratum Legal you can navigate the process successfully. We helped this Body Corporate from Noosa do exactly that.

 

This article was contributed by Michael Kleinschmidt, Legal Practitioner Director – Stratum Legal

Leave a Reply

  1. Brian

    Very good to hear of an actual prosecution aNd how the system
    Works. As a last resort for occupiers who flout the rules. We always approve a dog , cat, bird, but some people do not get approval first. Most rental agents seem to tell intending tenants the need to get approval first. One tenant got approved for one cat then two appeared and reported by other tenants and matter resolved.

  2. Kailene Squire

    There is a catch-22 situation with pet approvals. Most BC’s want you to submit a photo, vaccination certificate etc, which you can’t do until you actually have the dog, so unless there is more to this case, the ruling was harsh and unjust.

  3. Michael Kleinschmidt

    Hi Brian,
    In Queensland a landlord can still refuse to allow pets in their lot – that may change however if Queensland adopts the same rules that Victoria has.
    In Victoria, a landlord has to go to VCAT to get an order that pets are not allowed in the landlord’s lot, before the landlord can lawfully refuse a pet.
    regards,

  4. Michael Kleinschmidt

    Hi Kailene,
    Thank you for your comment.
    It may seem like a catch 22, but it’s not.
    You can ask for approval for a pet you don’t yet have.
    As for the decision in this case, the lot owner flouted the rules (by-laws) that all owners had agreed to. Its one rule for all, not some.
    In my books, the lot owner got off lightly.

  5. Sandra St Ledger

    This is a very fair decision. It reflects respect for other lot owners and the committee who are simply volunteers….a fact that is often forgotten. There are by-Iaws for people and there are by-laws for pets…..that is fair and reasonable. I believe that under some (maybe all) councils domestic pets must not go into pool areas or pool registration can be cancelled . Pet owners in ignorance of (or disregard for) this type of rule can put the functioning of the building at risk. This is the type of consequence that pet owners ignore if they do not follow set guidelines. I applaud this court decision it will assist many committes and Bodies Corporate.

  6. Helen

    Hi Michael

    Great article and great outcome. May I ask why this was progressed through the local Magistrates court rather than the BCCM Commissioner’s office? It does seem like it resulted in a quicker and fairer outcome for the body corporate.

  7. Michael Kleinschmidt

    Hi Helen,
    Thank you very much.
    While I cannot speak to the BC’s motivations (due to client confidentiality) I would point out that in situations similar to this:
    (1) adjudication – all an adjudicator can do is declare there is a breach and order it remedied. That may take months (the Commissioner needs more staff), cost thousands, and while you ‘may’ get there in the end (i.e. pet removed from site), there is no sanction for the bad behaviour. That is not the adjudicators fault, because it’s not their role; or
    (2) prosecution – in most SEQ jurisdictions, the local magistrates court will hear complaint and summonses upwards of twice a month (think parking fines etc). The Magistrates are hard working, no nonsense judicial officers, used to dealing with summary offences. Accordingly they are quick, efficient and used to hearing every excuse in the book. They also know and understand one critical thing that sometimes is overlooked by adjudicators – community is enhanced by consistency of judicial decision making, and if a lot owner does the crime, they should do the time. Adjudicators decisions are discretionary – and with all due respect to them (they are overworked!) they sometimes refuse to use their powers to actually fix the heart of a dispute, because they are worried about community harmony and people living in the community titles scheme cohering. Example: I have seen an adjudicator find that BC money was wrongly spent on lot owners (private) renovations, but not order that the money be paid back!
    So, with a simple matter like breach of a by-law, I would recommend the Magistrates court any day of the week – while you may not get all of your costs back, you get none in adjudication, and lot owners tend to take a trip to the local Magistrate a lot more seriously than a trip to the Commissioner’s office… it makes for effective deterrence.
    Regards
    Michael

    1. Chris Irons, Strata Adviser, Hynes Legal

      Interesting observations Michael. While I won’t speak for the Commissioner or her team of adjudicators, I know from experience that a trip to the Commissioner’s Office is taken VERY seriously by most parties. Anecdotally, I can say that in my tenure as Commissioner, the vast majority of parties accepted the umpire’s decision and complied with the adjudicator’s order. In other words, the order becomes its own deterrent. I’d even go a step further and argue that it’s precisely the fact adjudicators consider community harmony that their orders have authority.

      I also know from experience (as in, being on the receiving end of pained phone calls from parties standing in a Magistrates Court registry or from a very confused registrar) that Magistrates Courts has very little exposure to body corporate matters. This can cause issues at the filing stage, not to mention any actual proceedings which may ensue.

      I’m not dismissing any of your suggestions or approaches. Far from it: I think it’s important that all the options are on the table when it comes to solving body corporate disputes. I just think there’s a bit for parties to bear in mind before they embark on one path or the other.

  8. Michael Kleinschmidt

    Hi Chris, thank you for your comments.
    I agree that all options should be considered before action is taken. I think it is lack of familiarity with by-law prosecutions, by lawyers(!), that leads to more adjudications on breaches than Magistrates Court prosecutions. All the magistrates I have seen deal with strata matters (so far) have been right on the ball.
    They are so used to summary offences, they go straight to the relevant section, checks the points of proof and then sort it out; accordingly to law and, dare I say it (!) not community harmony.
    The issue of community harmony as a factor in adjudicator decision making is a very worrying one for me. I have seen an adjudicator detect misappropriation of body corporate funds for private works, and in instead of ordering reimbursement by those benefited individuals, back to the body corporate, simply letting the matter lie; presumably for community harmony.
    In my view there is nothing more corrosive to the rule of law, than inequity before the law; i.e. the malfeasance of the majority is condoned for the sake of perceived community harmony.
    In any event, that is probably a good topic for our next great debate!