This article about pets in owners corporations in Victoria has been supplied by Tim Graham, HWL Ebsworth Lawyers. This article also includes a Q&A about companion pets in Victorian apartments.
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- ARTICLE: Pets in Owners Corporations in Victoria
- QUESTION: Am I able to have a companion pet in my apartment in Victoria? Is it possible for companion animals to be banned at my scheme?
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Pets in Owners Corporations in Victoria
In Victoria, it is unlikely that a blanket prohibition on pets is within the Owners Corporation’s power.
Model rule 3.1(4) set out in the Owners Corporations Regulations 2007 provides that if the Owners Corporation has resolved that an animal is a danger or is causing a nuisance to the common property, it must give reasonable notice of this resolution to the owner or occupier who is keeping the animal. Model rule 3.1(5) requires an owner who is served with such a notice to remove the animal.
Under s.140 of the Owners Corporations Act 2006 (OCA) a rule is of no effect if it is inconsistent with or limits a right any Act or Regulation. That includes the Owners Corporations Regulations, and consequently the model rules.
Whether or not a pet has caused nuisance will be a matter of fact. The Owners Corporation, usually through the committee, is charged with the duty of deciding whether or not a pet constitutes a nuisance before making a decision whether or not the animal should be removed. As a part of that process, the Owners Corporation and its committee must act fairly, and exercise natural justice to all parties when considering the alleged breach before it.
To be valid a rule must:
- fall within the rule-making powers set out in Schedule 1 of the OCA;
- be for the purpose of the control, management, administration, use or enjoyment of the common property or of a lot.
The Supreme Court’s decision in Owners Corporation PS 501391P v Balcombe [2016] VSC 384 is the current yardstick for rule-making power. In that case, the court considered the Statutory Purpose of Owners Corporations in the context that there must be a sufficiently direct and substantial connection between the Statutory Purpose and any given rule. The proper approach to the determination of the validity of a rule was described as follows:
First, it is necessary to determine the statutory object to be served by, and the ‘true nature and purpose’ (‘the Statutory Purpose’) of, the power to make regulations. The relevant inquiry as to the Statutory Purpose of the power is considered by reference to the scope, object and subject matter of the empowering Act.
Secondly, it is necessary to characterise the impugned regulation by reference to the circumstances in which it applies, in particular, its operation and effect. The evidence of the circumstances in which the regulation will operate will enable the court to form a view about the nature and apparent purpose of the regulation, and the existence and dimensions of the actual or threatened mischief sought to be addressed by the impugned regulation.
Thirdly, ‘once armed with the knowledge of these facts’, the court then makes its own assessment of:
- whether the connection between the likely operation of the regulation and the Statutory Purpose of the power is sufficiently direct and substantial; or
- whether the regulation could not reasonably have been adopted as a means of attaining the Statutory Purpose, in which case it will be so lacking in reasonable proportionality as not to be a real exercise of the power
It is relevant that Balcombe concerned rules which were made prior to the commencement of the OCA on New Years Eve 2007. On one view – a view adopted by VCAT in the initial decision – rule-making power under the OCA was extended under the OCA. There is now power to make special rules under Schedule 1 of the OCA inter alia in regards to:
1.1 Health, safety and security of lot owners, occupiers of lots and invitees.
1.2 Safety of children, including their exclusion from areas that may be unsafe for them or restricting activities that may be unsafe.
7.2 Noise and other nuisance control.
And so perhaps rule-making power now exists whereas it did not hereinbefore exist. But because a rule must be for the purpose of the control, management, administration, use or enjoyment of the common property or of a lot it seems plain that to be valid a rule:
- Must be regulatory, not prohibitive (even if the consequence of regulation is prohibition after the Owners Corporation exercises natural justice);
- Insofar as the rule circumscribes behaviours within a lot which would be lawful but for the rule, have some connection to common property.
Examples of appropriate regulation include that owners must ensure that:
- noises, smells and allergens created or caused by pets must not extend beyond a lot;
- must be kept properly, inside and hygienically;
- pets do not carry communicable infections or disease;
- when traversing common property pets are restrained (or better still transported in closed carriers).
A rule will also be invalid if it unfairly discriminates against a lot owner or occupier. Even if a rule is made within rule-making power it will be of no effect if it unfairly discriminates or is inconsistent with other laws. In Owners Corporation SP24474 v Watkins (Owners Corporations) [2016] VCAT 1312 (11 August 2016) the tribunal found that the pet rule discriminated against animal owners because it treats animal owners less favourably than non-animal owners.
The tribunal noted that discrimination of itself does not make a rule invalid – the issue for determination is whether the rule unfairly discriminates against a lot owner or occupier of a lot, noting that other lot owners and occupiers have the right to enjoy common property without the interference of animals. To determine if a rule unfairly discriminates, the rule needs to be examined in the context of the particular subdivision. Ultimately, VCAT ordered that Ms Watkins must keep her dog on a leash or otherwise restrain the dog whilst on common property for the period of six months, in which time the Owners Corporation had the opportunity to pass and register an effective rule if it chooses to do so.
I have not yet received instructions to act in a rule breach case against the owner of an ant farm or goldfish. Based on anecdotal experience, however, it is only a matter of time.
Tim Graham
Bugden Allen Graham Lawyers
E: [email protected]
P: 03 9086 5832
This post appears in Strata News #146.
Question: Am I able to have a companion pet in my apartment in Victoria? Is it possible for companion animals to be banned at my scheme?
I am very interested in enabling companion pets in apartments. It happens and is accepted all over the world in both Eastern and Western countries. It just seems to be a problem in Australia and New Zealand. This needs to be redacted as discrimination, as recently cited in a Melbourne case where it was determined that pet owners were being unfairly discriminated against.
Isolation, mental and physical health and aged individuals are the ones who suffer the most from this. It has been proven pets aid ones general health and well being. Responsible pet ownership is, of course, a condition that may need guidelines for all to follow.
Answer: The Equal Opportunity Act 2010 protects people with disabilities from discrimination, which includes protection from discrimination because a person has an assistance dog.
The Owners Corporation Act 2006 and associated Regulations (2007) allow for rules to be made with respect to the use of Common Property. The Model Rules contained in the Regulations, by default, allow for animals to be kept within an Owners Corporation and simply includes a provision to remove animals that are a danger or are causing a nuisance to the common property, with the exception of guide dogs or assistance dogs.
The Equal Opportunity Act 2010 protects people with disabilities from discrimination, which includes protection from discrimination because a person has an assistance dog. This Act doesn’t apply this protection to other types of companion animals.
Whilst some Owners Corporations have set rules prohibiting the keeping of pets, and attempt to enforce them, s140 of the OC Act expressly states that rules are to be of no effect if inconsistent with law. VCAT has stated, on occasions where such a rule has been challenged, that such a rule unfairly discriminates against lot owners or occupiers (s140(a)) and ruled that they are invalid and of no effect.
Decisions like this from VCAT reinforce the point that Owners Corporations cannot put in place a blanket ban on pet ownership.
It is common to see rules written that state that dogs must be restrained whilst on Common Property or prohibited from certain areas, such as swimming pools, which is a completely reasonable means of managing the use of Common Property and can be enforced.
The expansion of the rule-making power of an Owners Corporation is currently under consideration as part of the Consumer Property Law Review being undertaken by Consumer Affairs Victoria, however I would be surprised if it were to change with respect to the keeping of pets.
In short, there is nothing currently preventing a responsible pet owner from keeping pets in apartments, companion animals or otherwise.
This post appears in Strata News #133.
The Knight
T: 03 9509 3144
Email
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Read next:
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i live in a set of units. i have emailed my property manager asking if i can get a pet and i have been refused due to body corperate apparently putting in a rule for no cats or dogs or pets allowed. im curious with the new pet laws for tennats if this has changed or not. as im home 98% of the time due to working from home and i been wanting a pet for ages. my landlord also refused me to get a pet via email only because of n courtyard. aswell as he fully renovated the property prior to me moving in. landlord also stated that no1 on this property of single story units has pets which i have found to be false as i know a few do in fact have pets. please advise on anything you may know please and thank you.
Hi Daniel
Tim Graham’s article above should assist. Regarding the information provided by your landlord, this is outside the scope of this site. You may be able to seek advice from Tenants Victoria.
In Victoria how many dogs can a tenant keep in an Apartment?
Hi.
Our Vic OC Rules states you can have a dog up to 25 kg, subject to OC approval.
My husband & I live on the 3rd floor. which has a terrace of 100 m2. We wish to have 2 small dogs (Yorkshire or Australian silky terriers) on our allotment.
I note the tenants who moved in October 2020 next to me have 2 CATS which occasionally fly across 1 m high balconies to our terrace. I have photographed the cats on OUR allotment & spoken to the tenants in a friendly way. Why can the tenant have 2 cats?? I would like to small dogs.
Your advice would be appreciated.
Start qute
“Isolation, mental and physical health and aged individuals are the ones who suffer the most from this. It has been proven pets aid ones general health and well being. Responsible pet ownership is, of course, a condition that may need guidelines for all to follow. ”
end quote
That there is the problem!
What about mental health of neighbours? Neighbours that don’t want to hear dogs barking, don’t want to walk in dog poo?
I understand what you say about aged people wanting pets but in my experience they are the ones that don’t seem to have the energy to shut their dogs barking up. Ask them nicely and most times they act as if you have violated them. I understand you love your dog, but we don’t
As for discrimination, what a joke? Simply put, most dogs bark, all dogs poo outside, Australia has a huge dog problem, yet doggy people stamp their feet and yell discrimination.
I firmly believe there should be no cats or dogs in OC properties. Maybe purchase a home more suited to pets, a home not so close to others.
At the end of the day, before you get a pet think if you really need this! Do you need a pet that is noisy or can freely go to another’s property. That puppy was cute, but now its grown up and you don’t want to deal with it so neighbours stop enjoying the quiet peace of their property. Imagine if a neighbour purchased dirt bikes and revved them on and off all day then even at night… Very annoying
I think you missed the point about responsible pet ownership. And we are not talking a puppy is just for Christmas. Everyone I know who has dogs takes full responsibility for cleaning, noise management and leashing their animals. I live in Melbourne CBD and have never seen (or heard) anything other than good pet management. I have no idea where you live, but your attitude is interesting to say the least
I’m renting with two cats in an Owners Corp apartment and have recently been emailed documents from Owners Corp in regards to cats (in general) being a nuisance to other owners and tenants (this is the second time they have sent us this). The letters were addressed to everyone in the building, however there are only two apartments which have cats – myself and the tenants diagonally below us. I leave the balcony door open for the cats to roam around throughout the day and I lock them in at night (as per local council regulations), whilst the other tenant keeps cats out all day and night.
The owner living below me and next door to the other tenant mentioned above, is coincidently the manager of the Owners Corp and is the part of the board who meets to discuss such issues.
The documents that were sent to us were informing us that we have breached the rules on pet ownership as the cats are considered a nuisance to be roaming around balconies and may be defecating in people’s yards.
My question is what are my rights on having my cats outside when the local council allows it during the day? Do the Owners Corp have a final ruling on not allowing a cat on a balcony/s? And how can I prove to them that’s it’s not my cats?
The cats that I have have always been outdoor cats and it feels cruel to me to keep them locked in a studio apartment, especially when we were never informed of this ‘nuisance’ rule when we first signed our lease. I know for a fact that the cats don’t spend time around the apartment complex – I’ve watched them leave the complex the moment their door is unlocked in the morning and head through the park next door, and I’ve never heard of a rule of cats being not allowed outside.
I feel a stressed and worried that I’m being targeted for something that I haven’t done wrong. It’s an awful feeling being bullied in your own home, even when you follow the rules!
Who can I contact if the Owners Corp decide to take this further and try to remove a pet who has done nothing wrong? If I signed a lease that never stated any of these Owners Corp rules, how does that affect me?
Just a follow up on this dog matter. Over the past few months I have been reading a lot of media reports from NSW and Vic about poorly controlled and unleashed dogs, some rushing at and leaping onto others. Many admissions to hospital and even some deaths. Also reports of dogs disturbing people including children in public parks. This was exactly what I had experienced for two years but found myself mocked and disregarded when I asked for it to stop. Several committee members are cat and dog owners. This can leave a resident in ‘no mans’ land’. I would not hold out much hope at VCAT.
Been in the same situation. Dogs off leash (I have children). Constantly stepping in dog poo. Dogs nuisance barking. Dog fights (even dogs being mauled to death) Dogs on my furniture. Have even had neighbours then harass me after finding out I complained.
Maddy next year there will be a new Law come into effect that permits residents to keep pets in rental. Your one cat should not present a problem. We already have about 12 cats and several dogs at my apartment block. In fact, several residents have two cats and some a dog as well. Cats and dogs even jumping off balconies and roaming in stairwells unsupervised. Cats everywhere. They have, since my initial report, made some progress with dog owners controlling their dogs. I recently read several reports from residents in my suburb who have experienced the very same problems that I did for two years with rushing and jumping dogs onto me. The committee who are very much cat and dog lovers paid no attention to my complaints. I actually had a dog for almost 16 years but always acted with respect. Current dog owners not only would not, or could not, control their dogs, they became quite unpleasant and even resorted to mockery. This is a very emotive issue and it will be interesting next year how it pans out IMO.
We have just moved into our new home- settlement was on the 17th May, and today received the Owners Corp rules. There is a clause that states that I must write to the Owners corp for permission to have a pet.
I have one cat, that is strictly indoors, she’s not even allowed on the front balcony so I feel that it is unnecessary to even invite the possibility of having permission denied by requesting to have her. Our current plan is to not inform our OC ………
Admin – We found this question so interesting, we decided to dedicate a whole Q&A post about it. To read the response to Maddy’s questions, take a look at this Q&A post – VIC: Q&A Let’s Just Not Tell Them About the Cat in our Apartment
l would like to know where l stand on a bylaw on pets in a body corporate as an owner.
They state owners can have pets but renters cannot. None of the owners live there.
2 are holiday rented and 2 are permanent rentals – one of these is mine. The other one the owner comes down occasionally.
As my tenants have vacated I’m looking for new ones. The agent has had 3 applications, all with a small dog. This has affected me being able to accept applications and I’m losing income because of the bylaws.
l do not have a problem with having pets as long as they abide by the rules. l have spoken to the body corporate and they said it was a grey area as renters have rights to pets. As there is the new law on no discriminating on pet owners, I am very annoyed that they can dictate to me about my own property.
Wendy
I find it hard to believe that the only people that applied owned pets
I would like to know how the OC Regulations support an elderly owner from a leaping dog on the common property. A dog has been jumping on me since 2016, sometimes when I am accessing our public path.
But the committee, two being cat and dog owners keep ignoring my complaints. If they deny the dog is being nuisance to me and a possible danger, what rights do I have? I am 76 y.o.
Hi Edwina
Thanks for your question. We have received the following reply back from Tim Graham, HWL Ebsworth Lawyers:
Schedule 2 of the Owners Corporations Regulations 2007 contains Model Rules.
The following subsections of Model Rule 3.1 are germane:
(4) If the owners corporation has resolved that an animal is a danger or is causing a nuisance to the common property, it must give reasonable notice of this resolution to the owner or occupier who is keeping the animal.
(5) An owner or occupier of a lot who is keeping an animal that is the subject of a notice under subrule (4) must remove that animal.
(6) Subrules (4) and (5) do not apply to an animal that assists a person with an impairment or disability.
Whilst “danger” and “nuisance” are not defined in the Model Rules, assistance may be gained from elsewhere.
A dog is a dangerous dog if it is declared to be so by council, or under s.34A of the Domestic Animals Act 1994 (DDA) if the dog:
(a) the dog is kept, or at any time has been kept, as a guard dog for the purpose of guarding non-residential premises; or
(b) the dog, at any time, has been trained to attack or bite any person or any thing when attached to or worn by a person.
A dog is to be regarded as a nuisance for the purposes of section s.32(2) of the DDA:
(a) if it injures or endangers the health of any person; or
(b) if it creates a noise, by barking or otherwise, which persistently occurs or continues to such a degree or extent that it unreasonably interferes with the peace, comfort or convenience of any person in any other premises.
I suggest that you gather as much evidence as possible and make a complaint to the Owners Corporation, using the approved form referenced in section 152 of the Owners Corporations Act 2006.
It sounds reasonable that the owners will agree to keep the dog on a leash or otherwise restrained whilst on common property.
Failing that, you may apply to the Victoria Civil and Administrative Tribunal.
Thank you so much for that excellent reply setting out all the parameters. I have been reporting, documenting and even submitting official OC complaints. However, as the chair is a dog owner and has gathered a dog clique, and is mentoring them, I have hit a brick wall. They keep claiming that the dogs are not dangerous or a nuisance. Yet, the dog leapt on me again on 4th February. I am 76 y.o. They absolutely refuse to issue sensible pet guidelines and I think are challenging me to go to VCAT. They will engage an adversarial lawyer and I am toast. Another owner made a complaint in 2015 to CAV and that is exactly what they did. Very difficult for me.