Trafalgar loses another battle in dog fight

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A controversial mixed-use holiday rental and residential building has lost another battle in its continuing, long-running war against pets in the building.

Thanks to a Queensland Body Corporate Commission tribunal ruling, residents of Trafalgar Towers in Maroochydore, will no longer have to carry their dog up 12 storeys in the fire stairs to access their homes and can now use the lift

And Body Corporate Commission adjudicator Ron Miskinis has ordered the Body Corporate in the 16-storey, 56-unit apartment block, to remove sections of its by-laws that forbid pets from being on common property and transported in lifts, on the grounds that they are “unreasonable and oppressive”.

The trouble started last year when a couple moved into their home with their 10-year-old miniature poodle, which is blind.

Previously they had two dogs, one of which has now died, and they avoided occupying their home in Trafalgar Towers because of the restrictions on how pets could be moved in and out of the building. Instead they listed it predominently for holiday lets.

Prior to moving in permanently last year, having sold their house, they applied several times to the Body Corporate for permission to take their dog, Charlie, in the lift as it was impossible for them to carry him up 12 storeys in the fire stairs.

They also proposed that the by-laws be amended at an AGM to remove that restriction and allow pets to be transported in the lifts.

In June 1 last year they were told by the Body Corporate Committee that they would not be allowed to take Charlie in the lift.

As a result, they took the matter to the state’s Body Corporate Commission which last month published its findings that the by-laws were invalid and should be changed.

The offending by-laws said that “when entering or leaving the scheme with the animal, the occupier must use the fire escape stairs”.

Another clause, also now rescinded, said “the occupier must not take the animal into or permit the animal to enter the reception, the lobby, the recreation room, the sauna, the ground level toilets, the lifts, the swimming pool enclosure, the tennis court, the barbecue area, the pontoon or the basement level …”

In its submissions to the tribunals the committee said that over the years many owners had bought into the scheme on the understanding that pets were not permitted on common property

They added that some of the owners and occupiers of Trafalgar Tower are, for various reasons, not able to be in the presence of animals due to medical, psychological and/or physical reasons.

The committee said that the majority of owners had their units in the rental pool and most of them did not wish to have pets in their unit or on common property, as they did not believe that their guests would want to share lifts, pool areas and other common property with other people’s pets.

However the adjudicator quoted other cases in Queensland where it was established that the right to access your property over-rode by-laws that restricted practical means of doing so.

Another case he quoted established that, while it was reasonable to ask owners to restrain their pets on common property, carrying them was not the only or most effective means of doing so.

By-laws can operate to restrict the use of common property, but only when those restrictions are reasonable within the context of the building where they apply.  Expecting people to carry a pet up 12 flights of stairs was not reasonable.

This is the second time that the Trafalgar Building has fallen foul of an adjudicator’s ruling on pets. Back in 2016 an owner challenged orders by the Body Corporate committee that she couldn’t bring her pet dog into the block as it was “pet-free.”

Then the Body Corporate Committee argued in its minutes that allowing pets would affect chronic health condition of a number of owners at the complex who had sensitivity to pet fur which could cause respiratory failure. It also said:

  • Several owners had reported strong allergies to pet hair and pet phobias.
  • It was cruel to force pets to live in an apartment block environment.
  • Due to health restrictions of those owners, pets could not ride in the elevators at the complex due to the confined space.
  • The only access in and out of the complex, in the event of a fire, is via fire stairs which cannot be blocked in times of emergencies and pets will be distressed in those times.
  • Many of the owners, when purchasing at the complex, believed there to be a no pet policy and had since been very vocal on the matter.
  • A pet has been brought on the complex in the past, unapproved, and found to bark incessantly for a period when the owner was absent which caused a nuisance to other occupants at the complex.
  • Pets are found to carry diseases and parasites.
  • Movement of pets on the common property at the complex and the disposal of waste will also prove to be a problem.

However, the committee’s case was somewhat undermined by the fact that the block’s caretaker manager had moved his pet dog into the building.

In any case, perhaps realising that a “no-pets” rule was unsustainable, the Body Corporate amended their by-laws to say that pets had to be carried to and from apartments in cages. 

Those provisions were struck out by the 2016 Tribunal but the ban on pets travelling in lifts remained … until now.

FLAT CHAT OPINION: These issues highlight the continuing conflict between permanent residents and holiday landlords in Queensland apartment blocks, where the caretaker managers often still control the rental rolls.

Landlords, whether of residential or holiday rentals, are frequent loath to do anything that might reduce the appeal of their properties. 

Residents, quite reasonable want to be able to live with the same rights as apartment dwellers elsewhere.

Despite repeated health fears expressed in the two Trafalgar cases, there has so far been no loss of life due to pet hair allergies.

Pets are becoming a welcome reality in apartment blocks across the country, and so it’s only a matter of time before pet-friendly blocks are more rather than less appealing.

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  • #61240
    Jimmy-T
    Keymaster

      A controversial mixed-use holiday rental and residential building has lost another battle in its continuing, long-running war against pets in the buil
      [See the full post at: Trafalgar loses another battle in dog fight]

      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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    • #61303
      Patrosco
      Flatchatter

        Jimmy…thanks again from the Unit Owners Association of Queensland (UOAQ) for sharing the Trafalgar Towers story with your readers.  There are two matters of concern to the UOAQ about the latest adverse ruling against the Tower body corporate:

        1: There was no mention by the 2021 Adjudicator of the earlier adverse ruling in 2016, on pretty much the same issue.  In 2016, the body corporate was told to remove the condition that the cat or dog had to be carried up the emergency stairs in a wire cage…but it was also suggested they look closely at the remainder of their anti-pet by-law.  Obviously they didn’t look too closely because they stuck with the conditions that the pets could not access the lifts and had to use the stairs.  Hence the 2021 ruling.  This would have been a perfect opportunity for the 2021 Adjudicator to unleash on a body corporate for persisting with an obviously invalid by-law to the detriment of the owners.

        2.  This is another example where the BCCM legislation should permit some form of ‘costs’ being awarded against egregious RESPONDENTS who cause the problem in the first place.  Current law only allows costs against APPLICANTS for this type of behaviour.  The UOAQ does not favour a standard ‘costs’ regime where “winner takes all… loser pays”.  This would not be appropriate in a ‘peoples’ court’ where all parties are entitled to have their say on matters of genuine doubt, without risk of automatic penalties for getting it wrong. But if there is serious fault on the part of one party to a dispute, some type of sanction against the loser should be available, regardless of whether you are the applicant or the respondent.

        Ross Anderson  UOAQ Executive

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