This article about animal reforms for QLD community titles schemes damages has been supplied by the Commissioner for Body Corporate and Community Management.
Keeping pets in community title schemes has never been easier following recent amendments to the Body Corporate and Community Management Act 1997 (the Act) and its regulation modules.
The changes have reduced the obstacles to keeping animals in community titles schemes and increased the likelihood of securing body corporate approval.
This article explains the reforms relating to keeping pets, which commenced on 1 May 2024, and offers tips to assist bodies corporate to manage these changes.
Deemed approvals
A request to keep an animal is automatically deemed approved if:
- the committee can decide the request; and
- the committee does not decide the request within 21 days after it was made – called the ‘prescribed period’, or the ‘relevant period’ for a vote outside a committee meeting (VOCM).
It’s important to note, deemed approvals and ‘21 days to make a decision’, only apply to requests to keep an animal.
A body corporate should bear in mind that it can ask for any further documents or details about an animal after a request is made.
This does not extend the period to decide the request. The timeframe before a request is deemed to be approved starts directly after it is submitted.
Alternatively, if the body corporate has previously voted at a general meeting to make approving animals an issue reserved for decision by ordinary resolution, it becomes a restricted issue for the committee.
Where an animal request must be decided at a general meeting, it is automatically deemed approved if either:
- a general meeting is not called within 21 days after the request is made (the ‘relevant period’);
- a general meeting is called within the relevant period, but a decision is not made within 6 weeks after the general meeting notice is circulated to owners (the ‘prescribed period’).
In view of the time and expense usually involved in organising a general meeting, we recommend taking steps to enable the committee to decide animal requests, unless they do so already. This may require the body corporate to:
- change the wording of a by-law if it specifies that a ‘general meeting’ is needed; or
- revoke a prior general meeting decision to make animal requests an issue reserved for decision by ordinary resolution.
Any decisions deemed to be approved must be ratified at the next committee meeting (if it is not a restricted issue) or general meeting.
Notice of body corporate decisions
Whether the decision to keep an animal is voted on by the body corporate or it is deemed approved, the regulation modules now require written notice of the body corporate’s decision.
This must be provided to the person who submitted the request as soon as practicable after the approval.
Our office has created a form for Notice of body corporate response to request to keep or bring an animal on scheme land (BCCM Form 32), to ensure this requirement is met.
To clarify, this requirement is in addition to the body corporate’s normal obligation to send meeting minutes (or a record of motions for a VOCM) to all owners within 21 days after the meeting or decision.
Communication
We strongly encourage the body corporate to keep the lines of communication open when someone submits an animal request.
This may include acknowledging receipt of the request and explaining how the body corporate intends to handle it. It might be beneficial to provide a copy of our animal request flowchart to the person making the request.
Appropriate communication is especially important in the case of requests from occupiers who are not typically kept abreast of body corporate decisions.
For instance, if approving animals is a restricted issue for the committee and the request must be decided at a general meeting, the legislation only requires notice of the meeting to be given to owners.
If an occupier’s request is on the general meeting agenda, they may not know, if the body corporate does not notify them.
Failure to communicate appropriately in the above situation could lead to an occupier mistakenly assuming that the request has been deemed approved by the committee and bringing an unauthorised animal into the scheme.
Adding conditions of approval
Before the recent amendments, bodies corporate could generally impose reasonable conditions when approving an animal. The new section 169B of the Act clarifies this by specifying that a body corporate can grant the approval subject to conditions that are, in the circumstances, reasonable and appropriate.
Conditions are an integral means of managing the impact animals may have on other residents in the scheme. If conditions of approval are not complied with, the body corporate can ask for the animal to be removed.
A body corporate should be mindful that if an animal request is automatically deemed approved because it was not decided within the required timeframe, there may not be an opportunity to impose conditions.
A possible safeguard against deemed approvals slipping through condition-free may be to update the by-laws to include standard conditions regulating the keeping of animals.
As the case example below demonstrates, what is considered a ‘reasonable and appropriate’ condition may vary considerably depending on factors such as the animal, its owner’s physical capacity, or the scheme’s configuration.
Case example: Gemini Court [2023] QBCCMCmr 266
In the above order, a portion of the scheme’s by-law required all animals to be carried or otherwise transported to avoid contact with common property. This meant that an animal could not be walked on a lead over common property under any circumstances.
The adjudicator noted that the by-law did not give the body corporate “any discretion to consider whether such a condition is necessary or is overly onerous when the genuine risks of nuisance from the pet in question are weighed against other factors, such as actual physical limitations, inconvenience, or expense to the pet owner.”
The adjudicator also remarked that if approval was given for an elderly owner to keep a small dog, such an approval would be “meaningless if the owner cannot physically carry the animal, or lift it in and out of a trolley, to transport it over the common property”.
The layout of the scheme was also considered. The adjudicator commented on the limited exit points suitable for trolley access and observed that flatly prohibiting pets being walked on any part of the common property at any time was unreasonable, as “it does not take into account the physical parameters of the scheme, including limited ramps and basement carparking”.
The committee contended that the condition was there to avoid animal waste fouling the common property. While the adjudicator acknowledged that it was a legitimate concern, it was observed that other avenues were already available to manage it (such as an existing condition in the by-laws dealing with animal waste).
The adjudicator ultimately determined that the portion of the by-law imposing a transport condition was unreasonable, and therefore invalid.
No prohibitive animal by-laws
By-laws which do not allow any animals in the scheme, or prohibit animals of a particular breed or weight, are known as ‘prohibitive by-laws’.
Before the recent amendments, adjudicators generally determined that prohibitive animal by-laws were unreasonable. These decisions were based on section 180 of the Act which specifies that a by-law must not be unreasonable.
The new section 169B of the Act has confirmed this longstanding position – it now expressly states that a by-law must not prohibit animals or restrict the number, type or size of animals.
Instead of being reactive and waiting for a dispute to arise, we encourage bodies corporate to take a proactive stance to change prohibitive animal by-laws. A motion to change the by-laws must be agreed to by a special resolution at a general meeting.
Limited reasons for refusal
Sections 94 and 100 of the Act require bodies corporate and their committees to make reasonable decisions. Based on these sections, adjudicators typically found that it was unreasonable for a body corporate to refuse an animal request (unless there were special circumstances).
Section 169B of the Act has replaced the more general question of reasonableness with a clear list of reasons for validly refusing an animal.
Specifically, the body corporate can only refuse a request for an animal where:
- keeping the animal poses an unacceptable risk to the health and safety of other owners or occupiers because either:
- the owner of the animal is unwilling or unable to keep the animal according to reasonable conditions
- the risk cannot reasonably be managed by conditions
- keeping the animal is not permitted under other laws
- for example, a local council law that prohibits the type or number of animals to be kept
- the animal is a regulated dog under the Animal Management (Cats and Dogs) Act 2008
- keeping the animal would unreasonably interfere with:
- another owner or occupier’s use and enjoyment of the lot or common property and the interference cannot reasonably be managed by conditions
- native fauna that live on, or visit, the scheme land and the interference cannot reasonably be managed by conditions
- the occupier does not agree to the reasonable conditions proposed by the body corporate.
These limited reasons for refusal, together with the new ‘deemed decisions’ provisions in the regulation modules, place a positive obligation on bodies corporate to allow animals if requested.
Consequently, if a body corporate is considering rejecting a request, it must ensure its reasons for refusal are within the parameters set by section 169B. Failure to observe these reasons is likely to result in unnecessary disputes.
These reforms are welcome news for many residents in community titles schemes, prospective purchasers and renters with animals.
While the changes to the Act have mostly confirmed and clarified what was already in practice, the changes to the regulation modules regarding deemed approvals will significantly impact body corporate decision-making in relation to animal requests.
If you would like further information about animals in community titles schemes, you can access our detailed guide and our website page about animal by-laws.
Information Service Freecall 1800 060 119 Commissioner for Body Corporate and Community Management
This post appears in Strata News #716.
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Read next:
- QLD: Q&A Seeking Pet Approval from Your Body Corporate?
- QLD: Assistance animals and companion animals in a body corporate
This article has been republished with permission from the author and first appeared on the BCCM website.
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