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Hi all
First time poster, long time lurker. I just wanted to share my experience of applying for permission to have a dog in my 18-unit strata block. I will never live in strata again as a result of this experience.
We bought into the plan in 2013; having first checked to ensure that Option A of the model by-laws regarding pets applied where the OC cannot unreasonably withhold permission. There was no record of any other animals being allowed in the block.
The block is mostly investors, with 6 owner occupiers including us. 4 of these people make up the EC and have been “living here for 35 years or more and there’s never been a dog!”
We submitted a comprehensive pet application to adopt an adult shelter dog, including a management plan which included dog walking and dog sitting during the week, character references and the RSPCA’s guide to dogs in apartments. At this stage the dog is not in the apartment, nor ever has been.
I was present at the EC meeting where they decided they were not going to allow a dog because “there has never been a dog on the lot” and because “this would set a precedent.”
After the EC meeting I wrote them an email explaining why neither of those two reasons were not reasonable, citing previous cases decided by NCAT to that effect. I then requested the minutes of the meeting in writing
The EC’s WRITTEN response was very different from what was discussed in the meeting, probably because the strata managing agent helped them write it. In it, they noted that they had considered all our material and said no because:
- dogs were inappropriate in apartments
- the dog would bark and make noise
- the dog will soil or damage common property
- Occupational Health and Safety concerns
- potential dog smell
- Being a community minded building with elderly and children and veggie gardens, a dog was unsuitable
- wear and tear on carpet in common property
- the dog would frighten people
- strata insurance liability would be affected
- concerns about providing external service providers with keys to walk to the dog
There was nothing in their minutes about their real reasons that were discussed at the meeting. We wrote to the strata managing agent contesting the veracity of the minutes. No response.
We then went through mediation and adjudication. I submitted statutory declarations attesting to the dogs temperament, citations from NCAT cases that stated speculations and assumptions (aka the concerns from the EC, as there was no evidence the individual dog would behave in the ways they said it would) were not reasonable, and evidence that the EC’s concerns would be reasonable addressed by the imposition of conditions we set out in our application (on leash, pet insurance, commitment to pay for damage to c.p. should any occur).
The EC submitted 6 letters of personal objection on the basis that dogs should not be in apartments because it was cruel, a concern that the dog was a health and safety concern, further assumption and speculation that the dog would bark all day.
The adjudication process took 4 months. Towards the end of that 4 months the shelter dog we wanted to adopt developed an abscess on her tail that required daily cleaning. We took her home while waiting the adjudicator’s decision. 6 days later, the adjudicator’s decision was received, dismissing our application to be allowed to keep her because we had no “direct evidence as to how the dog would behave in the apartment.”
This was extremely frustrating.
How am I supposed to obtain direct evidence of the dog in the apartment if I need permission, and I cannot have permission if I do not have direct evidence?
We returned the dog 10 days after obtaining the adjudicator’s decision and videoed her for a week while we were at work. Meanwhile one EC member has repeatedly (and still is) sent us complaints that the dog is on the property, months after we have returned her, accusing us of being rude, disrespectful, strange, unfriendly, and contemptuous.
I’ve also seen him and by his own admission, he’s been standing at my door recording “dog noises” and taking pictures of our balcony, stating “who knows what they are washing off” alluding to dog waste I’m assuming! I’ve already been to the police and a report has been filed as I am not comfortable with the idea of him standing in front of our door recording.
We filed an appeal. The directions received from 1 NCAT member said not to bother to file any further evidence, that we could rely on what was in our adjudication application. At the appeals hearing, we were told that we couldn’t rely on that and that we should have submitted further evidence!
During my appeals process I relied on common sense reasoning to submit my points – the NCAT Member asked me to quote “the Supreme Court case” on which I was basing my reasoning.
This ENTIRE PROCESS has been ridiculous from the first and I’ve completely lost faith in anything regarding strata.
I’m not sure how to progress – I’ve obviously lost the appeal as the NCAT Member was blatant about his leanings.
I also really want a dog, and obviously bought into my unit thinking that under reasonable circumstances I could have one.
Should I even bother sending in another dog application or just give up completely? For financial reasons I can’t move into a house, and renting would also not be an option for financial reasons.
Just as a warning to others – should your EC decide to disallow your application because they don’t want to set a precedent, DON’T persuade them otherwise. Let them put that in writing and THEN go to adjudication. You’ll have more of a chance if you don’t help them fix their own stupidity! Sorry for the huge post!
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Wolf said
The EC’s WRITTEN response was … dogs were inappropriate in apartments
According to whom? There is a stack of evidence to the contrary. This is an opinion – it certainly isn’t fact.
the dog would bark and make noise
Are they soothsayers? How can anyone know for sure how an animal is going to behave. Even if this was an issue, there are aspects of the Act that cover even dogs that have been given permission but turn out to be noisy.
the dog will soil or damage common property
Not if it’s properly trained it won’t – and if it does, there are by-laws to deal with it.
Occupational Health and Safety concerns
Such as? I was once asked to advise on an attempt to ban pets because they would increase risk if there was a fire. I pointed out that by far the biggest cause of doestic fires is people cooking or smoking then falling asleep when they are drunk. Ban smoking and drinking before you even look at pets, I said. The move was defeated.
potential dog smell
Potential? As in, here is some more soothsaying.
Being a community minded building with elderly and children and veggie gardens, a dog was unsuitable
Nothing bring people together in buildings quite like dogs – they almost become a shared facility. lonely old people love them and kids learn how to deal with animals in a safe environment. Just keep the dog oput of the veggie patch
wear and tear on carpet in common property
Yeah, let’s ban women in stiletto heels first. And muddy work boots … and kids trailing muck from the veggie patch.
the dog would frighten people
These people frighten me. More Soothsaying – who’s living there, the cast from Macbeth?
strata insurance liability would be affected
That is just a lie plain and simple.
concerns about providing external service providers with keys to walk to the dog
Don’t forget the postie … and the meter readers … and bin men. Actually, the crime rate among dog walkers is the lowest among any service providers. (OK, I just made that up but it’s no more fanciful than some of these objections).
Should I even bother sending in another dog application or just give up completely?
All of this is just them clutching at straws – and it doesn’t matter how many straws you clutch, the arguments become more bogus, not less. The disappointing thing is that our Tribunal members seem to have have learned NOTHING in the past 10 years. If you can’t rely on by-laws when you buy a flat, what’s the point.
Watch this space … Flat Chat is on the case.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Wolf – even though Flat Chat is on the case, I’m a little confused by your optimistic reference to “Option A” of the Model By-Laws.
I assume you’re referring to Item 17 in Schedule 2 of the NSW Strata Schemes Regulation (2010), and if that’s so, how the Owners Corporation’s presumed adoption of the (default) “Option A” together with the fact that there was no record of it ever granting its consent to the keeping of an animal, would have given you any comfort or any expectation that an application by you would be well received (?).
“Option B” would have given you some hope as your dog may have been accepted under its subjective definition of “small”, but when you’re relying purely upon an unquantifiable assessment of “unreasonably” in the context of the Owners’ Corporations decision making, then as you’ve found out you’re pushing the proverbial up hill.
I too am looking for a wedge, so as a matter of interest, how did you check on the Plan’s adopted By-Laws, and was anything provided in writing?
@Wolf said:
Just as an additional query – the EC said to me that I should have requested their permission to have a dog before I purchased the property.Is this an accepted procedure and would this entail a prospective purchaser contacting the strata managing agent to ask them to forward a pet application to the Owners Corporation?
Another piece of arrant nonsense. How, in the relatively short process of buying or bidding for a unit, does a prospective purchaser get an owners corporation of which they are not yet a member to even hold a meeting? More obfuscation, straw clutching and kite flying. This little bunch of know-alls has decided that strata law doesn’t apply to them and your strata managers, knowing what side their bread is buttered on, is aiding in this delusion. Time they had a wake-up call.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Wolf – it seems odd that the wording of your Plan’s Pet By-Law is merely an adaptation of the Model By-Law 17 (A) contained in the Strata Schemes Management Regulation (2010) which states:
(1) Subject to section 49 (4) of the Act, an owner or occupier of a lot must not, without the prior written approval of the owners corporation, keep any animal (except fish kept in a secure aquarium on the lot) on the lot or the common property.
(2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property.
The wording of your Plan’s By-Law adds no value to the above so I’m wondering if, despite your Solicitor’s reviewing the Strata Report, your Plan’s Pet By-Law is properly Registered and therefore shown as a “dealing” on the Plan’s Strata Title Document?
If it’s not Registered, then despite the fact that the Model By-Law may then be assumed to apply, confusion together with the fact that your application was decided by the Executive Committee and not by the Owners Corporation at a General Meeting where the outcome may have been different, may be the “wedges” that we’re looking for.
Wolf – OK… so the By-Law that the O/C and/or its Strata Manager provided to the person who conducted your Strata Inspection / Report and upon which your Solicitor, the Fair Trading Adjudicator, and the NCAT Member relied is not Registered, and is therefore of no legal standing.
Therefore it’s Model By-Law 16 of the NSW Strata Schemes Management Act (SCMA) that applies, and I would have thought that, together with the incorrect information/wording provided by the Owners Corporation, would be grounds for the whole procedure of you seeking consent to be again commenced.
As you’ve already received support from all the other Owners concerning the Committee’s attempts to invoke a no pets option, how do you think you’d go convincing enough of them to join you in requisitioning the Secretary to convene an Extraordinary General Meeting to consider a new Motion to grant consent to your pet, that of course you’d have to prepare and support with evidence in the context of the Member’s comments (as illogical as they were); even conditionally while it proves itself suitable?
Under Cl. 31(3) of the SCMA you’d need a total 25% in support by unit entitlement; including you.
I don’t know what Jimmy’s working on, but as I’m all optioned-out and this post is becoming epic, this will be all from me; good luck.
@Whale said:
I don’t know what Jimmy’s working on, but as I’m all optioned-out and this post is becoming epic, this will be all from me; good luck.
At he very least – this will make a great Flat Chat column but I am speaking to our legal sponsors about running with it.
In any case, Whale and I seem to agree this is worth taking further and having another swing at it.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Wolf
Don’t give up on your desire to have a dog in your apartment. Though there may be comprises (size for instance) I believe you should still battle on! If the only way is up in this country (high rise apartments to cope) and we want to compare ourselves with countries overseas (where pet ownership in apartments, whether owner or renter is more or less accepted) then we have to get onboard with the idea of pets in apartment blocks.
I read recently that in the past year there have been a substantial increase in the amount of pet surrenders. Coupled with the current property market where investors/landlords make up a greater percentage of property owners than in previous years and the fact that a great many new homes built in major cities are infact apartments, then the fact that pets have to be surrendered in increasing numbers is not really a surprise. On my local area facebook page there are many requests for accomodation to rent that are “pet friendly” as well as people trying to find new homes for their pets to to a “change in accomodation requirements (moving into rentals/apartments).
So don’t give up! Not only for yourself, but for the many others out there who resort to giving up their pet for adoption or giving up on ever having a pet due to old fashioned views. Help them move with the times!
Hope all goes well with this little dog Wolf.
Had a friend who lived in an apartment with two little dogs. When the OC found out (after the dogs had been there for couple of months – and my friend did ask for permission but had not heard back) he was informed that this would not be allowed to continue. The OC took him to mediation and to the NCAT. He presented his case that the OC had objected simply because they were there – not because they had done anything (complex had the standard “cannot be unreasonably denied clause). Therefore their objection was not reasonable! Though they did also bring out “it sets a precedence” line – as there had been no other dogs/pets in the complex.
I advised my friend to keep a look out for other breaches of by laws that the OC overlooked – as they wanted to play by law enforcers. Sure enough, they turned a blind eye to this, didn’t bother about that! That was the card he kept up his sleeve!
Section 138 of the Act defines failure to act as being after two months have passed. That would be a guide, though hardly definitive.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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