Paper 10 - Pets


Pets can be a source of friction between neighbours in houses with individual fenced gardens, so it is likely they will be more so in OCs. 


Prior to the 2008 amendments, OCs could completely ban the keeping of pets. But the 2008 amendments removed the ‘default article’ (now called Rules) on pets and introduced S51A. The 2011 amendments reproduced exactly the same provision as S32 which reads:






32 Animals—owners corporation’s consent

(1) A unit owner may keep an animal, or allow an animal to be kept, within the unit or the common property only with the consent of the owners corporation.

  (2) The owners corporation may give consent under this section with or without conditions.

  (3) However, the owners corporation’s consent must not be unreasonably withheld.

Note An owner or occupier of a unit may apply to the ACAT to resolve a dispute with the owners corporation about keeping an animal, or allowing an animal to be kept (see s 126).

(4) In this section:

animal includes—

(a) an amphibian; and

(b) a bird; and

(c) a fish; and

(d) a mammal (other than a human being); and

(e) a reptile.


This provision has applied to all OCs since March 2009, including those that still have an Article banning all pets. More importantly such OCs cannot amend their Rules to make a new Rule banning all pets. All OCs have to deal with the legislation as it stands.


So all owners and occupiers have to seek permission to keep the pet prior to starting to keep the pet and all OCs cannot unreasonably withhold their consent. It should be noted that failing to make a decision either way may well be determined by ACAT as being an unreasonable withholding of consent.


The JACS Factsheet at http://cdn.justice.act.gov.au/resources/uploads/new_unit_title_fact_sheets/Fact_sheet_10_-_animals.pdf suggests that the most sensible path forward is for OCs to pass a general guidance policy or a House Rule at an AGM and task the executive committee with making decisions about giving and withholding consent. But the Factsheet notes that there is little guidance about how consent is to be given or withheld. This is reasonable because the decision makers, be that a general meeting or the executive committee have to take all the relevant circumstances into account. Examples of the policy guidelines agreed by three OCs are attached below to assist OCs and executive committees in developing a general policy framework.


But the framework can only be general and each decision to give or withhold consent must be made on its merits and take only relevant issues into account.


ACAT dealt thoroughly with a dispute where an executive committee refused consent to keep two dogs and in doing so took irrelevant considerations into account and did not take relevant considerations into account. This case is reported at http://www.acat.act.gov.au/judgment/view/4305/title/lanfranchi-owners-of-units .


This judgement makes very clear that executive committees or OCs, if the OC as a whole is taking the decision, must be quite clear what the animal for which permission is being sought actually is, what breed it actually is, what behaviour that animal displays, what the attributes of that breed are and what risks to other owners and residents can be expected from the animal in question. ACAT makes it very plain in its decision that it is not good enough for the executive committee or OC to make assumptions and exercise ignorance and prejudice. Reasonable decisions have to show sound judgement and good sense. So executive committees would be well advised to check their assumptions with a vet or a breed society.


Likewise any conditions applied to the giving of consent must be consistent with giving consent and not a backdoor method of refusing it. Conditions have to be able to be put into effect. They have to be directed to minimising a genuine risk, not an imagined one. And OCs and ECs have to consider whether their decisions contain unintended consequences for that decision, or a later one.


Owners must make sensible decisions in their choices of pets, not expect animals to live in environments that do not meet their needs and be dedicated pet owners who look after their animals and tend actively to their needs, including stimulation and exercise. Your pet needs to know who else is entitled to be close by and how to respond to that. Make sure your neighbours know your pet and that a relationship of at least tolerance can be developed. Some relationships can eventually go as far as neighbours participating in the daily routines of an initially-resisted pet neighbour.


But the onus is on the pet owner. If the days of letting the dog walk itself or the cat feast on the neighbours goldfish have ended for neighbours in separate houses, OC owners and residents cannot be expected to tolerate that at much closer quarters.


The pet problem that causes most difficulties in OCs is barking dogs. Prolonged barking is either a result of boredom or lack of socialisation. The solution to this animal behaviour problem lies in the hands of the animal’s owner. Advice is available at http://www.tams.act.gov.au/__data/assets/pdf_file/0010/416917/Suggestions_to_Reduce_Barking.pdf and http://www.tams.act.gov.au/__data/assets/pdf_file/0005/386015/Barking_dogs_factsheet.pdf . If the owner chooses not to deal with the problem, the OC can require the animal to be removed.


It would be wise for owners corporations to apply a condition to the giving of consent to all pets, that if the pet causes disturbance the consent will be revoked and the method by which the consent will be revoked eg a two thirds majority of the executive committee or an ordinary resolution of a general meeting. This makes it abundantly clear that other residents also have a stake in the granting of consent and a right to maintain their peaceful enjoyment. If a complaint is made, it would then be incumbent on the executive committee to survey whether more than one owner or resident is affected by any disturbance. The executive committee might also like to contact the ACT Domestic Animal Services (DAS) on 13 22 81 to get advice on what an owner can do to rectify the problem and if appropriate to get DAS to assist the owner.


If your executive committee or OC seems unwilling to take action to handle poor behaviour by already approved pets, contact Domestic Animal Services (DAS) on 13 22 81 to initiate a complaint and go through all the steps DAS advise. A minority of residents who are on the premises when the pet owner is away may be the only ones hearing dog barking for example. The executive committee may well not be derelict in its duties. It just has a few reports of a problem and does not yet understand the context. The DAS complaint process requires regular recording of the dates and times of the disturbance and that evidence may be enough to bring about internal action. If not, proceed calmly to lodging a complaint with DAS and allow the DAS process to take its course.


Pet Policy examples


Example 1: A 23-unit Class B development, 20+ years old


House Rule 11


PETS

No household pets (animals or birds) shall be kept in any unit without written consent from the Corporation. Any such applications from tenants must also be accompanied by written consent from the unit owner.


The Unit Titles Act, as amended in 2008, now includes a clause within the Act itself (previously part of the default articles) that says in effect that permission to keep animals must be sought from the Corporation, but that such permission shall not be “unreasonably withheld”. It does not define “unreasonably”. However, it does allow conditions to be imposed. The net effect of this on this Corporation is negligible, as it matches our existing policy, which has been largely set by precedent. Briefly these conditions are:


Dogs, when outside the unit, shall be restrained to the external courtyards of units or, when on the common property, shall be on a leash.


Cats, when outside the unit, whether in a courtyard or on the common property, are difficult to restrain, so shall be fitted with a collar with two attached bells (as a bird warning).


Animals shall not present any danger or hazard to other occupants, particularly children. This may preclude permission being given for certain breeds of animal.


Animals shall not cause any nuisance to other occupants by way of persistent barking, garden and plant destruction, fouling of outdoor areas etc


If sustainable complaints are received, then the Committee reserves the right to revoke permission and the offending animals must be removed within a period as directed by the Committee.



Example 2: A 12-unit Class B complex with a more comprehensive Rule and House rules.


Rule 9 provides that animals, birds and fish may not be kept in a unit or on the common property without the written approval of the owners corporation, and that such approval may be withdrawn by resolution of the corporation. Article 9 originally allowed dogs and cats, but in the light of experience, the corporation decided that in future, permission should be given only in exceptional circumstances.


9 Animals, birds and fish

(1) Other than with the approval of the owners corporation, a unit owner must not keep, or permit to be kept, any animal, bird, or fish within the unit or on the common property.

(2) Subject to any resolution of the owners corporation the executive committee, if it is satisfied that it is appropriate to do so, may on behalf of the owners corporation give written permission for the keeping of an animal, bird, or fish within a unit.

(3) Permission may be given subject to stated conditions.

(4) Permission may be withdrawn by special resolution of the owners corporation.


House rule 6 defines the kinds of animals, birds and fish that will routinely be approved, prohibits, other than as may be approved by a special resolution of the owners corporation, the keeping of dogs and cats other than the four animals brought in under the old article, and outlines the criteria for such approval.


6 Animals, birds, and fish

(1) Pursuant to Article 9 the executive committee shall give permission for the keeping of small animals, birds, other than domestic poultry, pigeons or birds of similar or larger size, and fish within a unit if and only if:

(a) the numbers and types of animals, birds, or fish accord with any applicable ACT legislation; and

(b) the animals, birds, or fish do not cause a nuisance to other residents.


(2) The executive committee shall not give permission to keep dogs, cats, or animals of similar or larger size, other than those four individual animals housed at Units 1, 6, 7 and 8 on 10 August 2006, except as may be authorised by Special Resolution of the Owners Corporation.


(3) Permission to keep dogs, cats, or animals of similar or larger size shall be subject to any conditions imposed by resolution of the owners corporation and:

(a) shall be given only to a unit owner who resides in the unit;

(b) shall terminate upon the person to whom it is given vacating the unit;

(c) shall be granted with due cognisance of the circumstances of that resident owner and the characteristics of the animal in respect of which permission is sought; and

(d) except in the most extenuating circumstances shall not be given in respect of any animal deemed by the owners corporation to be of such size and strength as to make it capable of inflicting serious injury on a child.


Example 3: A 200+ unit Class A complex


ANIMAL POLICY


Background

At the 2009 Annual General Meeting of the Owners Corporation (OC) a new Article 9 (Animals) was adopted in relation to the keeping of animals. The Article provides that a unit owner may keep an animal, or allow an animal to be kept, within the unit or on common property only with the written consent of the OC through the Executive Committee (EC). The Article also empowered the EC to attach conditions to any approval to keep an animal. For the benefit of everyone the EC has published this Animal Policy. The policy sets out:

  • how to apply to keep an animal

  • when to apply to keep an animal

  • who may apply to keep an animal

  • the types of animal for which the EC will consider granting approval, and

  • how long it will take for the EC to make a decision on your application.


How to apply to keep an animal

You should use the application form attached to this policy document. Everything you need to know is listed there. Please make sure you read and sign the conditions on the back of the form. An interview between the applicant and members of the EC may also be required.


When to apply to keep an animal

You should apply for permission BEFORE bringing the animal on to the property for the first time. The EC will only grant approval where it believes there is a reasonable prospect that you will adhere to the conditions of that approval. Bringing an animal on to the property in contravention of the Articles is not the way to show the EC that you will follow the rules. Having applied, you need to wait before approval is granted before bringing the animal on to the property.


Who may apply to keep an animal

Generally only unit owners may apply. This includes where the unit is occupied by person/s other than the owner.


The types of animal for which the EC will consider granting approval


TYPE OF ANIMAL

EXECUTIVE COMMITTEE POSITION

Amphibians and reptiles


In line with the views of owners responding to a survey conducted by the EC approval will not be granted for these types of animals.


Fish


Approval will generally be granted if the EC is satisfied that suitable arrangements will be made for sanitation and waste disposal.


Birds


Approval will generally be granted if the EC is satisfied that

(a) suitable arrangements will be made for sanitation and waste disposal, and

(b) the bird is unlikely to create a nuisance.


Cats


In line with the views of owners responding to a survey conducted by the EC, and given the risk to the native wildlife inhabiting the common property and the lack of direct access from the street to individual units, approval will in general not be granted for cats.


Dogs


In line with the views of owners responding to a survey conducted by the EC, and given the risk to the native wildlife inhabiting the common property and the lack of direct access from the street to individual units, approval will in general not be granted for dogs.


Other types of animal


The EC will consider granting approval for other types of animal on a case-by-case basis.