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Pets in Owners Corporations in Victoria

In Victoria, it is unlikely that a blanket prohibition on pets is within the Owners Corporation’s power.
Model rule 3.1(4) set out in the Owners Corporations Regulations 2007 provides that if the Owners Corporation has resolved that an animal is a danger or is causing a nuisance to the common property, it must give reasonable notice of this resolution to the owner or occupier who is keeping the animal. Model rule 3.1(5) requires an owner who is served with such a notice to remove the animal.

Under s.140 of the Owners Corporations Act 2006 (OCA) a rule is of no effect if it is inconsistent with or limits a right any Act or Regulation. That includes the Owners Corporations Regulations, and consequently the model rules.

Whether or not a pet has caused nuisance will be a matter of fact. The Owners Corporation, usually through the committee, is charged with the duty of deciding whether or not a pet constitutes a nuisance before making a decision whether or not the animal should be removed. As a part of that process, the Owners Corporation and its committee must act fairly, and exercise natural justice to all parties when considering the alleged breach before it.

To be valid a rule must:

·        fall within the rule-making powers set out in Schedule 1 of the OCA;
·        be for the purpose of the control, management, administration, use or enjoyment of the common property or of a lot.

The Supreme Court’s decision in Owners Corporation PS 501391P v Balcombe [2016] VSC 384 is the current yardstick for rule-making power. In that case, the court considered the Statutory Purpose of Owners Corporations in the context that there must be a sufficiently direct and substantial connection between the Statutory Purpose and any given rule. The proper approach to the determination of the validity of a rule was described as follows:

First, it is necessary to determine the statutory object to be served by, and the ‘true nature and purpose’ (‘the Statutory Purpose’) of, the power to make regulations. The relevant inquiry as to the Statutory Purpose of the power is considered by reference to the scope, object and subject matter of the empowering Act.
Secondly, it is necessary to characterise the impugned regulation by reference to the circumstances in which it applies, in particular, its operation and effect. The evidence of the circumstances in which the regulation will operate will enable the court to form a view about the nature and apparent purpose of the regulation, and the existence and dimensions of the actual or threatened mischief sought to be addressed by the impugned regulation.
Thirdly, ‘once armed with the knowledge of these facts’, the court then makes its own assessment of:
                        i.          whether the connection between the likely operation of the regulation and the Statutory Purpose of the power is sufficiently direct and substantial; or
                      ii.          whether the regulation could not reasonably have been adopted as a means of attaining the Statutory Purpose, in which case it will be so lacking in reasonable proportionality as not to be a real exercise of the power
It is relevant that Balcombe concerned rules which were made prior to the commencement of the OCA on New Years Eve 2007. On one view – a view adopted by VCAT in the initial decision – rule-making power under the OCA was extended under the OCA. There is now power to make special rules under Schedule 1 of the OCA inter alia in regards to:
1.1 Health, safety and security of lot owners, occupiers of lots and invitees.
1.2 Safety of children, including their exclusion from areas that may be unsafe for them or restricting activities that may be unsafe.
7.2 Noise and other nuisance control.

And so perhaps rule-making power now exists whereas it did not hereinbefore exist. But because a rule must be for the purpose of the control, management, administration, use or enjoyment of the common property or of a lot it seems plain that to be valid a rule:

·        Must be regulatory, not prohibitive (even if the consequence of regulation is prohibition after the Owners Corporation exercises natural justice);
·        Insofar as the rule circumscribes behaviours within a lot which would be lawful but for the rule, have some connection to common property.

Examples of appropriate regulation include that owners must ensure that:

·        noises, smells and allergens created or caused by pets must not extend beyond a lot;
·        must be kept properly, inside and hygienically;
·        pets do not carry communicable infections or disease;
·        when traversing common property pets are restrained (or better still transported in closed carriers).

A rule will also be invalid if it unfairly discriminates against a lot owner or occupier. Even if a rule is made within rule-making power it will be of no effect if it unfairly discriminates or is inconsistent with other laws. In Owners Corporation SP24474 v Watkins (Owners Corporations) [2016] VCAT 1312 (11 August 2016) the tribunal found that the pet rule discriminated against animal owners because it treats animal owners less favourably than non-animal owners.

The tribunal noted that discrimination of itself does not make a rule invalid – the issue for determination is whether the rule unfairly discriminates against a lot owner or occupier of a lot, noting that other lot owners and occupiers have the right to enjoy common property without the interference of animals. To determine if a rule unfairly discriminates, the rule needs to be examined in the context of the particular subdivision. Ultimately, VCAT ordered that Ms Watkins must keep her dog on a leash or otherwise restrain the dog whilst on common property for the period of six months, in which time the Owners Corporation had the opportunity to pass and register an effective rule if it chooses to do so.

I have not yet received instructions to act in a rule breach case against the owner of an ant farm or goldfish. Based on anecdotal experience, however, it is only a matter of time.

Tim Graham
Bugden Allen Graham Lawyers

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How to approach rules made prior to the Owners Corporations Act 2006 commenced

Owners Corporation Managers are often asked to advise on OC rules and to facilitate the dispute process.  Naturally, the first step is to review the rules.
 
All OCs have rules for the control, management, administration, use and enjoyment of common property and lots.
 
The purpose of rules is two-fold:
 

  • Prospective regulation of matters; and

 

  • Retrospective enforcement of breaches.

 
Model Rules are set out in Schedule 2 of the Owners Corporations Regulations 2018 (OC Regulations).  By default the Model Rules apply unless the OC makes its own Special Rules and records them with Land Victoria.
 
An OC may make Special Rules by passing a special resolution of 75% of the total votes for all lots affected by the OC.  To be valid and enforceable Special Rules must:
 
1. be for or with respect to a matter set out in Schedule 1 of the Owners Corporations Act 2006 (OC Act ) (section 138(1)); and
 
2. be for the purpose of the control, management, administration, use or enjoyment of the common property or a lot (section 138(3)).
 
There is power under Schedule 1 to make special rules relating to:
 

  • Health, safety and security

  • Committees and sub-committees

  • Management and administration

  • Use of common property

  • Lots

  • Design

  • Behaviour of persons

  • Dispute resolution

  • Notices and documents

  • Common seal

 
If a proposed Special Rule does not fall under one of these powers then the rule will be invalid and unenforceable by the OC.
 
But what if the rules were registered prior to the commencement of the OCA?
 
The Subdivision (Body Corporate) Regulations 2001 were gazetted under the Subdivision Act 1988.  Form 1 of the Schedule set out Model Rules which applied to all bodies corporate (as OCs were then known).
 
Additional to the Model Rules, Regulation 220(1) of those regulations stated:
 

(1)       By special resolution, the body corporate may make rules in addition to the rules applied under regulation 219.

 

There was no prescribed subject matter in respect to which additional rules could be made.  However, it was long been the law of Victoria that a rule can only be made in respect to subject matter’s within the rule-maker’s power.  In the arly 1930’s in Williams v City of Melbourne [1933] HCA 56 the High Court stated [Per Dixon J]:
 
Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power.
 
The OCA, including its transitional provisions, came into operation on 31st December 2006. The transitional provisions were contained in Schedule 2 of the OCA and relevantly provided:
 
5. Rules of body corporate
 
Any rules of a subdivision body corporate in force immediately before the commencement day, continue in force on and after that commencement and are deemed to be the rules of the owners corporation under the new Act to the extent that they are not inconsistent with the new Act or the regulations under the new Act.
 

In Sulomar v Owners Corporation No 1 PS511700W (Owners Corporations) [2016] VCAT 1502 (6 September 2016) the tribunal commented:

 

[19]  The power to make rules was conferred upon bodies corporate under regulation 220. However, the power was not an unfettered power to make any rule. The power to make rules was limited to the statutory purpose of the body corporate.
 
In other words, for a rule to be “saved” pursuant to the transitional provisions it must have been made validly in the first instance.  VCAT commented further in Sulomar:
 
[17]  Because the transitional provisions do not validate an otherwise invalid rule, it is not necessary to consider whether the rules could have been made under the OC Act. It is only necessary to consider the validity of the impugned rules under the Subdivision Act 1988.
 
And so, for a rule to be validly made under r.220(1) of the Subdivision (Body Corporate) Regulations 2001 it had to be within the statutory purpose of the body corporate (now owners corporation).
 
The Supreme Court described the "statutory purpose" test in Owners Corporation PS 501391P v Balcombe [2016] VSC 384 as follows:
 
First, it is necessary to determine the statutory object to be served by, and the ‘true nature and purpose’ (‘the Statutory Purpose’) of, the power to make regulations. The relevant inquiry as to the Statutory Purpose of the power is considered by reference to the scope, object and subject matter of the empowering Act.
 
Secondly, it is necessary to characterise the impugned regulation by reference to the circumstances in which it applies, in particular its operation and effect. The evidence of the circumstances in which the regulation will operate will enable the court to form a view about the nature and apparent purpose of the regulation; and the existence and dimensions of the actual or threatened mischief sought to be addressed by the impugned regulation.
 
Thirdly, ‘once armed with knowledge of these facts’, the court then makes its own assessment of:
 
(i) whether the connection between the likely operation of the regulation and the Statutory Purpose of the power is sufficiently direct and substantial; or
 
(ii) whether the regulation could not reasonably have been adopted as a means of attaining the Statutory Purpose, in which case it will be so lacking in reasonable proportionality as not to be a real exercise of the power
 
Consequently, for an Additional Rule to be validly made under the Subdivision (Body Corporate) Regulations 2001, and to be transitioned under the OCA, it needed to be made consistently with the body corporate’s functions or powers.  For ease of reference I set those out below:
 

201. Functions of bodies corporate

 

A body corporate has the following functions-

 

   (a)  to repair and maintain-

 

   (i)  the common property;

 

   (ii) the chattels, fixtures, fittings and services related to the common property or its enjoyment;

 

   (iii) the equipment and services for which an easement exists for the benefit of the land affected by the body corporate;

 

   (b)  to manage and administer the common property;

 

   (c)  to take out, maintain and pay premiums on insurance required or permitted by any Act or Division 4 of this Part and any other insurance the body corporate considers appropriate;

 

   (d)  to provide a certificate in accordance with Division 7 when requested;

 

   (e)  to take any action necessary or desirable to ensure that these Regulations and the rules of the body corporate are complied with;

 

   (f)  to carry out any other functions conferred on the body corporate by the Act, these Regulations or any other law.

 

202. Powers of bodies corporate

 

(1) A body corporate has all the powers that are necessary to enable it to perform its functions, including, but not limited to, the following powers-

 

   (a)  to set fees intended to cover general administration and maintenance, insurance and other recurrent obligations of the body corporate, based on lot liability and to determine the times for payment of these fees;

 

   (b)  to levy special fees or charges designed to cover extraordinary items of expenditure, based on lot liability;

 

   (c)  to acquire, hold and dispose of personal property for the use of members of the body corporate and the occupants of lots and the general public;

 

   (d)  to borrow, repay and invest money;

 

   (e)  to establish and operate any bank account consistent with current business practice;

 

   (f)  to appoint or employ persons to assist the body corporate in the performance of its functions;

 

   (g)  to provide services or to enter into agreements for the provision of services to members of the body corporate and the occupiers of lots;

 

   (h)  any other powers conferred on it by these Regulations or the rules of the body corporate.


Tim Graham
Bugden Allen Graham Lawyers

 

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Pets in Strata: How to Resolve Pet-Related Issues


04 Jul 2023

As strata managers, you are probably aware that pet issues are one of the top three issues in community living. We Australians love our pets, and with one of the highest recorded numbers of pet owners in the world, it’s no wonder that this is a controversial issue.
 
Resolving pet issues in a strata scheme requires clear communication between the pet owner and owners corporation, and an understanding of the laws. In this blog, we’ll highlight some of the issues with keeping pets in strata schemes and how to resolve pet-related issues in your building.  

Understanding Strata and Pet Ownership

Can you have pets in strata buildings? That’s the question we often get asked by owners corporations and lot owners. Well, the answer is this - it depends.
 
In Victoria, strata residents are allowed to keep a pet without seeking approval. This is different from states like South Australia and Queensland, where lot owners must get the permission of the owners corporation before they can bring a pet into the building.
 
However, if the animal is a nuisance to the resident or poses a threat to others, then the owners corporation has the right to ask the pet owner to remove the animal from the building. Additionally, the owners corporation can also create their own by-laws with a no-pet rule, which must be approved by Land Victoria.
 
If renters are in the picture, then a renter must seek permission from the lot owner to have a pet in the house.
 
But what exactly is the issue with keeping pets in strata schemes? Let’s look at some of the common ones.

Common Pet-Related Issues in Strata Schemes

While the joy of keeping pets is immeasurable, it does come with complications in a strata with shared common spaces. Here are some of the issues we usually see (and mediate) as strata managers
 
  1. Pets in common areas: Not everyone loves having pets around, and some residents may feel uncomfortable having pets in common areas such as the pool and gym.
  2. Understanding strata by-laws: Many residents overlook the strata by-laws unintentionally. Especially if a resident is migrating from interstate, it’s common for them to bring a pet into a ‘no pet’ building.
  3. Messy pets: Unfortunately, we’ve seen many complaints of pet owners leaving a mess in common areas. This affects the cleanliness and aesthetics of the premises, and it’s not allowed in any case.
  4. Noise and disruptions: Noise from pets is disruptive and intrusive to other residents' well-being and is a prevalent cause of complaints for pets in strata.
  5. Navigating ‘no-pets’ by-laws: The no-pets by-laws can often be misinterpreted and (sometimes intentionally) overlooked. These laws are even more blurred in the case of support animals.

How To Address Pet-Related Issues in Your Strata

Handling pet-related issues can be challenging, but with the right strategies and a level head, you can resolve the issue without escalation. Here are some strategies your owners corporation could take to address and resolve these issues.

Review the rules

If the owners corporation does not have special or registered rules, then you should refer to the existing model rules for your state. You should familiarise yourself with the specific rules and regulations regarding pets in your strata as stated by the strata by-laws.
In the example of Victoria, the model rules 4.1(4) and 4.1(5) outline that if a pet is determined to be a nuisance or danger by the owners corporation committee, then they must resolve it by asking the pet owner to remove the pet from the premises. 

Open dialogue

Most pet-related issues can be resolved through open communication and compromise between residents. If a resident expresses a concern regarding a pet, suggest for them to respectfully start an initial conversation with the pet owner. They could explain their concerns to the pet owner and try to find a mutually acceptable solution together.
 
If the issue isn’t resolved, the owners corporation can speak with the pet owner directly - providing sufficient proof of the pet issue and details of the resident’s complaints. Alternatively, you could also mediate the initial conversation between the pet owner and the residents.

Follow appropriate channels

While closing the issue in the steps above is ideal, we understand that some complaints aren’t resolved as quickly. If the issue remains, it may be necessary to follow the formal complaint process under section 52 of the Owners Corporations Act 2006 (OC Act).
 
Residents with a complaint should fill up the approved complaint form on the Victoria Consumer Affairs website and submit it to the grievance committee or the strata manager. Doing this provides relevant parties with formal, specific details about the issue and related evidence.

Organise a dispute resolution meeting

The owners corporation should also consider involving a neutral third party in a dispute resolution meeting. This could be done by a professional mediator or a committee member.
 
Having a neutral external party can help facilitate discussions between everyone involved and work towards finding a resolution that satisfies all parties. Remember that the goal is to look for a win-win resolution.

Attend dispute resolution meeting

Both the complainant and the alleged offender should be encouraged to participate in the dispute resolution meeting. Remind them that the meeting provides an avenue to express their concerns, listen to others, and work towards finding consensus on resolving pet-related issues in the community.
 
After the meeting is held, the grievance committee must determine if the matter is resolved or if the owners corporation will take further action on the matter. A notice of decision must be sent to all parties, even if the grievance committee decides not to take it further. Regardless of the action, it must report the same at the next annual general meeting.

Issue breach notice

Unfortunately in some cases, unresolved pet issues may require legal intervention. For example, if the committee has asked a pet owner to remove their pet from the premises and they haven't done so within the time frame, then the committee can enforce this by issuing a notice to rectify breach form.
 
If the pet owner continues to breach the rules, a final notice to rectify breach can be sent, followed by passing an ordinary resolution if it continues. All forms can be found on the Victorian Consumer Affairs website.
 

Key Takeaway

In conclusion, keeping pets in strata schemes can be tricky, but with the right steps and a clear understanding of strata by-laws, you can resolve the issue with all parties satisfied. Open communication and responsible pet ownership are also key to a harmonious shared living space, so addressing every issue with empathy and professionalism is important.
 
At Australia Strata Management, we understand the complexities of strata, including navigating the responsibilities of pet ownership. With over 30 years in the business, we aim to help all owners corporations maintain an efficient property that benefits all its residents.
 
For a no-obligation consultation about our property management services, contact our team today.