Can a by-law prohibit pets?
By Frank Higginson14 Dec 2010
In a recent decision an adjudicator had to consider whether by-law imposing a complete ban on pets was enforceable. The background of the case was that:
- For a number of years, the scheme had a by-law which provided that an occupier or invitee must not, without written approval from the body corporate, bring or keep an animal on to a lot or common property.
- When the applicant first moved into the scheme, he did not seek committee approval for his small dog.
- The applicant subsequently sought approval, but it was refused due to a no pets policy.
- This policy was later voted in as a by-law.
- The applicant argued against the committee‘s refusal to allow him to keep a pet and the new by-law on the grounds that the policy and by-law were too restrictive, unjust and/or simply unenforceable.
In the decision, the adjudicator upheld some earlier decisions and found that:
- a ’no pets‘ by-law was not objectively reasonable in any circumstances; and
- the by-law was oppressive by completely restricting an owner from having a pet, even one as simple as a goldfish.
What can be learnt from these recent decisions is that:
- a by-law imposing a complete ban on pets will be void; and
- a committee is obliged to consider the circumstances of each case and be reasonable in the decision it makes.
Committees have to take stock of these recent decisions and be more fluid in how they deal with pet approvals. In our view, the focus for by-laws of these types has changed from trying to mandate what type of pets will and won‘t be approved, to putting the onus on lot owners to provide their committee with enough information to make a reasonable decision.
Bodies corporate should re-evaluate their by-laws concerning pets and seek advice on whether the by-laws are valid. Identifying problematic by-laws early can save a committee from getting into an emotional and difficult dispute with their neighbour over whether a pet is appropriate for the scheme.