Enforcing Pet By-Laws<< Back to Blog
The recent decision of a Gold Coast Resort shows that a by-law banning all pets will be overturned on adjudication for being oppressive and unreasonable. This resort had a pet by-law for a number of years which provided that an occupier or invitee must not, without the Body Corporate’s written approval, bring or keep an animal on a lot or common property. The Applicant brought his dog into the scheme without first seeking approval. When he did ultimately seek approval the committee refused to grant it, ostensibly on the basis of a ‘no pets’ policy. In February 2010, the owners voted to amend the by-laws to reflect that policy; the proposed by-law provided that an owner or invitee was not permitted to keep an animal within the lot or on common property.
The Applicant objected to both the committee’s refusal and the new by-law. The Applicant submitted that the proposed by-law prohibiting the keeping of any animal was too restrictive, unjust and not enforceable. The Adjudicator held that it was not objectively reasonable for the Body Corporate to absolutely prohibit the keeping of any animal, in any circumstances. Further, the Adjudicator found that the proposed by-law was oppressive in that it unduly restricted the use of a lot by preventing an owner from keeping any animal, even something as inoffensive as a single goldfish.
While the Adjudicator recognised the Applicant’s non-compliance, by not first seeking approval for the dog before bringing it home, did not affect either the reasonableness of the committee’s refusal or the oppressive nature of the proposed bylaw. Accordingly the Adjudicator declared the proposed by-law void. Enforcement begins with awareness. Owners & buyers should be made aware of the pet by-law; if the Scheme has a notice board, post the by-laws on it. The Body Corporate might instruct, and pay for, their Body Corporate Manager to provide with each information certificate for a buyer, a copy of the by-laws.
Record in the minutes all enforcement action taken, why it was taken and with what result. The Body Corporate should enforce the new by-law fairly, reasonably and without fear. A history of contravention notices will lessen the ability of an Adjudicator to conclude that a Body Corporate has acted unreasonably in one particular instance. The Body Corporate should not delay or fail to act to enforce the by-law. If it does then an owner may argue that there has been acquiescence on the part of the Body Corporate in not taking steps earlier.
The committee should not refuse the request of one owner to keep an animal but grant approval to another where there is no logical or reasonable basis for a distinction to be made. Bodies Corporate should treat all owners reasonably and be seen to be doing so. In Summary – Enforcing a pet-law is not difficult but it does need careful consideration, planning and timely action. If the issue of pets is a critical one for a Scheme then using the process detailed above will deliver the greatest chance for the right result, including on adjudication.