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  • #66082
    rhi
    Flatchatter

      I apologise for this long description, but it has become a convoluted nightmare.

      I am from NSW, with the older pets by-law which requires written permit, Owners Corporation (OC) not unreasonably withholding approval.

      Our 3-member strata committee consists of: an owner-occupier (MrB), myself (I’m an owner-occupier) and an owner who rents out (MG). We do not have internal procedures to deal with applications or permits.

      Around Oct/November of 2020, MrB brought in 2 dogs. With no pet application, no written permit. I will admit I let this go out of the goodness of my heart, with Covid lockdown and the hope that being an owner-occupier and committee member, MrB would have the initiative to make the application. Nothing happened while the dogs were kept in MrB’s lot, while continuing to tolerate the escalating barks of 2 dogs and resulting noises.

      April 26, 2021: I spoke then wrote a few days later to our Strata Manager (SM1, who acts as: Chairperson, Secretary, Treasure, Committee Member) whether an application was received and permit/s issued (without my knowledge).
      May 14, 2021: email from SM1 saying still no response from MrB
      May 18, 2021 @ 12:18pm: email from SM1 saying: “… I am actually scheduling the AGM for June 1, 2021 to be held onsite so perhaps I can address this issue directly with him? Otherwise next steps are I would need to issue a Notice To Comply and if he still keeps them we would have to go to NCAT.” (I did not respond to this email.)
      May 18, 2021 @ 1:12pm: an email from SM1 for the AGM notice

      I point out the date and times I received these correspondences because:
      1. It was not clear as to what SM1 meant by “taking the issue directly with MrB”. Whether this was going to happen before, during or after the AGM.
      2. I thought for a Notice To Comply to be issued, it required a vote first by the committee which Mr B is a member and it should be on the agenda

      June 1, 2021 AGM: SM1 immediately starts off by saying: “an application for the dogs has been received” then takes a vote count. Over my questions and arguments about lack of details (only that brother & sister puppies), lack of rules and conditions. Every time I tried to ask a question, for example about noise, poo, allergens, it was brushed off as if it was picky, irrelevant and normal for strata living, even non-residential, where there are animals. Like I was time-wasting.
      All these done orally, with people talking over each other; side conversations going on. Vote continued, resulting in dogs being permitted to remain.

      A few days later, I received the AGM minutes, as per the agenda. Nothing referencing the dogs at all, not the oral application & vote or what actually took place, what was said.

      On hindsight, from what I know now just from reading up, I believe that June 1, 2021 oral vote should not have happened.
      1. It was not on the agenda, no motions were raised – I could not have raised a motion for Notice to Comply to be voted on since by the time SM1 got back to me, I had no time to raise it before getting the AGM notice.
      2. SM1 should not have asked for a vote right there and then because: no motion to approve/not with supporting documents on the agenda.
      Please comment.

      Can I still dispute the validity of this “vote” now, given the time difference, to have a mediation with NSW Fair Trading?

      I ask this because:

      Oct 17, 2022, I saw two dogs being brought into MrB’s lot.
      1. The two dogs “voted on” on June 1, 2021: predominantly brown/black.
      2. The two dogs brought in on Oct 17, 2022: one was predominantly brown/black; the other, predominantly white with some black or brown markings and smaller than the former.
      By colour and size alone, my conclusion is that the predominantly white dog is a new one.

      Oct 24, 2022: At this point, I no longer know how many dogs area actually in MrB’s lot. It is very likely dog-Oct2022 is a replacement.
      I sent an email to a different (but from same company) strata manager (SM2) who took over our scheme. I asked SM2 to look into this and any other dogs/pets that may be in MrB’s keeping.
      I was transparent telling him that on June 1, 2021’s AGM permitted keeping of the two dogs and that I was against mainly because I was not provided dogs’ details and was not able to set conditions.
      Oct 25, 2022: SM2’s response to me – “Are the dogs causing any issues?” And quotes our by-law to me.
      Oct 26, 2022: I call SM2 hoping to have a conversation about whether that vote applied to this new dog. It ended as an argument and me just asking: where is the written permit for the dogs kept by MrB?
      Oct 31, 2022: SM2’s email to me: “I have now obtained written approval from MrB and MG, as it was not recorded in the minutes from the last AGM even though you confirmed in writing it was discussed.

      Arguable, as I said above, I would not call it a discussion.

      Additional questions:
      1. Is this “permit” valid? To me, it’s very ambiguous: which dog, how many, could be for a dog or animal MrB brings in tomorrow, 2 years, indefinitely.
      2. And if I can challenge the June 1,2021 vote, on what grounds can I do so aside from:
      – Meeting procedure not done properly (no motions, no time to review, no supporting documents; minutes don’t even have this)
      – Not being able to vote with care and diligence. And I question how MG could have done so. Without supporting papers and time to review.
      3. SM1’s failure to conduct the meeting & vote properly.

      I am not against having pets in the strata but rather the process that enabled getting this “permit”. If this continues as is, serious could arise not just because of MrB’s dogs.

      I intend to go to Fair Trading (and NCAT if necessary, on my own against OC) since that is looking like the only option, with an additional aim of replacing this Strata Company,

      So please provide as many comments and suggestions. Thank you.

    Viewing 8 replies - 1 through 8 (of 8 total)
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    • #66089
      Jimmy-T
      Keymaster

        I am from NSW, with the older pets by-law which requires written permit, Owners Corporation (OC) not unreasonably withholding approval.

        All older pet by-laws have largely been superseded by regulations and by-laws that basically say either all the owner has to do is notify the owners corp that they have a pet, or seek approval, with conditions, that may not be unreasonably refused.

        Recent court cases have pushed the needle on pets to a default of acceptance, subject to the animals not proving to be a nuisance

        The other side of this is an “interference” regulation that lists the grounds on which you can complain about an animal (below).

        Correct procedure clearly wasn’t followed in this case but given that it would have been harder to refuse than accept, and the former would have led inevitably to a Tribunal challenge, I can see why the committee and strata manager would let it ride.

        In the same vein, no Tribunal is going to remove a manager because they didn’t follow the letter of the law in achieving an outcome that was inevitable either way.

        However, fi the dogs are proving to be a buisance, here are the grounds for dealing with them:

        36A   Keeping of animals—circumstances of unreasonable interference

        For the purposes of the Act, section 137B(3), the circumstances in which the keeping of an animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property are—

        (a)  the animal makes a noise that persistently occurs to the degree that the noise unreasonably interferes with the peace, comfort or convenience of another occupant, or

        (b)  the animal repeatedly runs at or chases another occupant, a visitor of another occupant or an animal kept by another occupant, or

        (c)  the animal attacks or otherwise menaces another occupant, a visitor of another occupant or an animal kept by another occupant, or

        (d)  the animal repeatedly causes damage to the common property or another lot, or

        (e)  the animal endangers the health of another occupant through infection or infestation, or

        (f)  the animal causes a persistent offensive odour that penetrates another lot or the common property, or

        (g)  for a cat kept on a lot—the owner of the animal fails to comply with an order that is in force under the Companion Animals Act 1998, section 31, or

        (h)  for a dog kept on a lot—

        (i)  the owner of the animal fails to comply with an order that is in force under the Companion Animals Act 1998, section 32A, or

        (ii)  the animal is declared to be a menacing dog or a dangerous dog under the Companion Animals Act 1998, section 34, or

        (iii)  the animal is a restricted dog within the meaning of the Companion Animals Act 1998, section 55(1).

        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.
        #66095
        rhi
        Flatchatter
        Chat-starter

          Thanks JimmyT.

          I am hoping that this does not actually go to NCAT that mediation alone would sort it out.

          MrB has a history of sneaking dogs in without asking for approval. We just learn of it when it starts barking and the smell comes out into common indoor areas or if I happen to see a glimpse of it outdoors. When asked, MrB does not respond to anything. SM1 may have been privy to information but it wasn’t passed on to us, to me at least.

          So, there’s no information about the dogs: breed, age, health & training records. There were no conditions set. Including for this new dog.

          The first time,  I pointed out that the dogs when left alone, would be howling, barking at the birds on the lawns several metres away from MrB’s window, people on the street, dogs being walked past, running inside chasing one another from one end to another. MrB’s lot has wooden floorboards and with my lot directly above them with exactly the same floorplan, wherever I am I could hear the noise. The dogs would bark when people, including residents and visitors, would walk past their doors. Their closed doors prevent face to face encounter with
          the dogs but when the dogs suddenly bark, even when you expect it, it gives me and my visitors a fright, making me feel like an intruder in my own home. Then the owners arrive, there is such a ruckus and commotion compounded by an explosive slamming of their door. I sit outside my balcony trying to relax,  their balcony door or windows are opened, and the smell drives me inside.

          The first time, SM1 and OC would not acknowledge that this was causing interference to my peace & comfort.
          I was told it was normal in strata living and to live with it. So how can peace and comfort be actually quantified, the line set making it unreasonable. Their tolerance is obviously different from mine.

          The problem is, I am the only officially complaining. MG, the other owner/strata committee member does not live here; the other two remaining residents are tenants. Though MG’s tenant re-affirmed to me the noise, this tenant did not want to make it official for fear of blowback. MrB has a history of tit-for-tat. And deflects from one issue to something else, making it feel I’m the one who has an issue that has to be resolved first.

          I cannot talk to MrB reasonably. The last time I tried to, he told me to address any issues with the Strata Manager.

          I bring interference to the table and MrB’s reaction would be: I am personally targeting them. I need even that one strong cause to bring it Fair Trading for mediation, not the Strata Manager, with the aim of: getting a process in place, where an application is made with information about the dogs, with conditions set accordingly.
          It is not just about MrB’s dogs. It is about any future dogs that are brought in by everyone. Same criteria for everyone.

          Tips for me to do so?

          I brought up trying to replace SM because of other issues we have had. This is just one of many. I won’t go into them.

          #66098
          Jimmy-T
          Keymaster

            MrB has a history of sneaking dogs in without asking for approval. We just learn of it when it starts barking and the smell comes out into common indoor areas or if I happen to see a glimpse of it outdoors.

            Excessive barking and offensive odours are both grounds for action at NCAT, regardless of any by-laws. And, yes, Mr B will take this personally.  Perhaps a letter to the strata committee explaining your options, and inviting them to sort this out to avoid any unnecessary conflict, might do the trick.  Couched in terms that you don’t want to cause trouble but you feel you are being ignored might soften the blow.

            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.
            #66099
            Sujenna
            Flatchatter

              I am hoping that this does not actually go to NCAT that mediation alone would sort it out.

              Does the OP mean proceeding to a tribunal hearing? To obtain mediation in the first place, doesn’t a complainant have to lodge a complaint with NCAT, where the matter is first sent to mediation to resolve issues between the parties without a formal tribunal hearing? I am assuming that most complaints lodged are resolved at mediation level at NCAT because no-one, including the tribunal adjudicators want to hear and determine conflict matters that tie up court time and can be costly.

              #66116
              Jimmy-T
              Keymaster

                The process is that you seek mediation from Fair Trading, specifying which section of the Act you feel is relevant. You and the other party will receive a notice telling you that there is to be a mediation and suggesting a date.

                If the matter is not resolved – and Fair Trading will not make any kind of ruling – then you can proceed to NCAT for a ruling.

                So, first off, you have to decide with whom you intend to seek mediation – the owner for breaching by-laws or the strata committee for failing to enforce their by-laws.  It could be:

                • Section 135 Requirement to comply with by-laws
                • Section 153 Owner creating a nuisance
                • Section 156 Order for removal of an animal not permitted under by-law
                • Section 158 Order for removal of an animal permitted under by-laws

                If you make your dispute against the strata committee, it could be:

                • Section 232 Orders to settle disputes or rectify complaints …
                  (1)(e) failure to exercise a function conferred or imposed by or under this Act or the by-laws of a strata scheme.
                • (2) Failure to exercise a function
                  For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if:
                  (a) it decides not to exercise the function, or
                  (b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.

                You can read details of all of these sections here in the Act.

                Mediation more often than not doesn’t lead to NCAT action and that is always your choice.  You can seek mediation without committing to NCAT action – and it’s free –  but you can’t take action at NCAT without prior mediation (in most cases).

                You find more information including a link to an online application for mediation HERE.

                 

                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.
                #66119
                rhi
                Flatchatter
                Chat-starter

                  (a) the animal makes a noise that persistently occurs to the degree that the noise unreasonably interferes with the peace, comfort or convenience of another occupant, or

                  How can unreasonable interference be judged though? One’s level of peace, comfort or convenience can be different from another.  I’m the only one who’s going to make a formal complaint on this, the rest are tenants who won’t.

                  And, yes, Mr B will take this personally. Perhaps a letter to the strata committee explaining your options, and inviting them to sort this out to avoid any unnecessary conflict, might do the trick. Couched in terms that you don’t want to cause trouble but you feel you are being ignored might soften the blow.

                  I will try that. But does anyone have any experience with Community Justice Centres cjc.justice.nsw.gov.au? They seem to mediate neighbour disputes. MrB being a neighbour in the strata, aside from a committee member.

                  #66122
                  rhi
                  Flatchatter
                  Chat-starter

                    Setting aside the incorrect procedure in getting the vote and interference.

                    This was the permit. Written down after I asked for it.

                    SM email: “I have now obtained written approval from MrB and MG, as it was not recorded in the minutes from the last AGM even though you confirmed in writing it was discussed.

                    Our by-laws is:
                    Clause 16 Keeping of animals
                    (1) Subject to section 49 (4), an owner or occupier of a lot must not, without the approval in writing of the owners corporation, keep any animal 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.

                    Doesn’t this sound like a Blanket Permit, since:
                    1. It resulted from the 2021vote then now claiming it includes this dog brought in on Oct 2022.
                    2. Zero information, zero conditions.
                    As OC/committee member myself I cannot say I can vote with care and diligence as per Clause 37 of the act.

                    37 Duty of members of strata committee
                    It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence

                    Is there anything on the laws and decisions that:
                    1. Allow for Blanket Permits.
                    2. An application and permit for each individual animal, each and every time a new pet is taken whether new or replacement
                    3. What an application should minimally contain. Acceptability of oral applications.
                    4. What a permit should minimally contain.

                    Does our by-law as currently stated need to be changed to refer to an internal process of getting a written permit?

                    Thank you again.

                    #66126
                    Jimmy-T
                    Keymaster

                      Is there anything on the laws and decisions that: 1. Allow for Blanket Permits. 2. An application and permit for each individual animal, each and every time a new pet is taken whether new or replacement 3. What an application should minimally contain. Acceptability of oral applications. 4. What a permit should minimally contain.

                      I think you have to accept that strata law and strata communities’ attitudes have changed. It was once the case that the very idea of pets in an apartment block was considered ridiculous.  Not so now.

                      In answer to your questions, if a matter is not specifically forbidden, then it is probably allowed, so you won’t find the rules you seek.  Communities set their own standards through their by-laws.  If they don’t there are plenty of fundamental laws about nuisance – some of which relate to pets – that you can fall back on, in extreme cases.

                      However, if the by-law requires written permission, then that is what’s required.  But a tribunal is not going to evict a dog or sack a committee because they gave permission orally or overlooked the fact that one dog had departed and been replaced.

                      Decide what it is that you want, specifically, then the Flat Chat community can offer worthwhile advice.

                      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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