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The Rights of Companion Animals and
the Strata Disputes Regarding their Ownership
[Kindly reprinted with permission
from Maynard H. Gill]
Strata Disputes Involving The Keeping of Animals
Undoubtedly, living within a strata scheme can give rise to
stresses and difficulties rarely encountered by the resident of a
detached dwelling. Disagreements and disputes sometimes arise and
often these are associated with the keeping of an animal.
Provided the strata scheme has a
registered by-law in force regarding the keeping of animals, which
includes a clause to the effect that an owner’s corporation must
not unreasonably withhold approval of the keeping of an animal on
a lot or the common property, the ultimate approval, or rejection,
of a pet application does not rest with the owner’s corporation or
its managing agents.
Let’s start with two all-important
a. The first step in seeking to
keep an animal must be a detailed written submission to the
owner’s corporation.The composition of this submission may spell
the difference between success and failure. Either first up or as
part of any subsequent dispute resolution. For example, an
application to keep a puppy is unlikely to find favour.The simple
fact of the matter is that puppies, like small children, cry. It
is perhaps best not to propose a dog which is less than 12 months
of age. For some reason desexed females are often looked upon more
kindly than male dogs.
Talk with the Animal Welfare
Service about the breeds of dog most suitable for unit living.
Obviously, it will favour a small breed. An owner’s corporation
seeks to be assured that a dog which is going to cry and bark is
not being brought into the building. Give an assurance that the
animal will not be allowed to foul common property and to this end
will be carried through and upon common property.The owner’s
corporation may wish to know for what periods the animal,
particularly a dog, will be left alone in the unit.
When the pet is a cat, state that
it will not be allowed to sit at open windows or on balcony ledges
as they have been known to fall from such places. Explain the
sanitary way you will dispose of soiled litter.Tell them you will
always take the cat in and out of the building in a carry case.
Remember, you are out to make it as
difficult as possible for an owner’s corporation to deny your
application.This document can be so important that it is
conceivably worthwhile seeking experienced assistance in its
b. Never attempt to ‘sneak’ an
animal into a strata scheme. Never bring an animal upon the strata
parcel without prior written approval. Both of these practices can
do irreparable damage to the ultimate success of your application.
Also, such action can provide an owner’s corporation with an
additional avenue for legal action.
Committed to a philosophy
Office of Fair Trading, which administers the Strata Schemes
Management Act, 1996 is committed to the philosophy that
tolerance, understanding of others and communication are essential
to harmonious strata living.The Act sets out a process for
resolving disputes. This includes mediation, conciliation and
formal order by the Strata Schemes Adjudicator and the Consumer,
Trades and Tenancy Tribunal.
Natural justice requires
significant discussion of an application to keep an animal and
resolution must be the subject of a properly convened meeting of
the owner’s corporation or its Executive Committee. A decision is
not the prerogative of an individual committee member or a
managing agent. If the owner’s corporation refuses Suppose every
attempt to resolve the dispute about keeping say a small dog or a
cat failed and by resolution the application has been
rejected.Where does the road lead from there?
You must try mediation through the
Strata Schemes & Mediation Services Branch of the Office of Fair
Mediation is a structured
negotiation process in which a neutral and independent mediator
assists parties in dispute to achieve their own resolution. It
gives all parties the opportunity to explain their situation.
Mediation also does not need to involve other people concerned
with the strata scheme who are not a party to the dispute. Also
participants do not have to find themselves alone in a strange
place as they may have support persons, experienced in mediation
(and this need not be a solicitor), at their side.Any agreement
reached through the mediation process is put in writing and signed
by all parties. Currently a free of $56 must be paid by the
applicant for mediation.
Where mediation fails the matter
can be taken to an Adjudicator.Applications to an Adjudicator are
dealt with in the office and the people in dispute do not have to
appear before anyone.A well prepared application is central.The
Adjudicator looks at the application and all submissions, as well
as decisions made in similar cases.The decision as to whether the
animal may be kept or not and the reasons for that decision, are
made in writing.
Unhappy with an Adjudicator’s decision?
appeal can be made to the Consumer,Traders and Tenancy Tribunal
within 21 Days of the order coming into effect.This needs to be
put together with some care.
The application lodgement will cost
$56.The appeal will be one of a number of applications listed at
the same time before the Tribunal.
Again, in the spirit of harmonious
living, the Tribunal must first try to help parties reach a
settlement.This is called conciliation. At some hearings the
Tribunal provides conciliators who assist parties with their
If an agreement is reached, a
formal order is made. If an agreement is not reached, the
application will be heard.
A Tribunal Member presides at the
hearing.The Tribunal Member will direct the discussion. Both
parties will be able to present evidence and ask questions of each
other.Witnesses may be called to support or refute arguments.The
Tribunal Member may require that the evidence be sworn or
affirmed.After both parties have given their evidence the Tribunal
Member will make a decision and give reasons. Sometimes the
decision is reserved and the decision and reasons are sent out
later. Once again, participants do not have to be alone in
unfamiliar surroundings as they may have support persons,
experienced in Tribunal procedures (again this need not be a
solicitor), at their side.
Hopeful of Success
experience indicates that, when a by-law states that an owner’s
corporation ‘must not unreasonably withhold approval of the
keeping of an animal’; it is not acceptable for the corporation to
then reject an application simply on the basis that is ‘wishes to
keep the strata scheme free of animals’. In such circumstances
there is every reason to be optimistic that the ultimate outcome
will be successful.
I have not commented on the
pecuniary penalties that may be applied when an Order is breached
but rather to review, in general outline, the dispute resolution
Encouragingly, I believe there
prevails, throughout the dispute resolution system, a requirement
that best endeavours must be made to bring the parties to a
settlement acceptable to them all. However, at the end of the day,
if settlement is not possible, a final order will be made.
Nevertheless, when this happens there is solid foundation to think
that at least you, the loving pet owner, are in with a chance.
Questions are welcome.
Maynard H. Gill, Dip Com Law, ANIBA, LSTM
Principal Executive Officer
Matrix Strata Management & Consulting Services
Post Office Box 474
Edgecliff. NSW 2027
Tel: (02) 9399 8460
Fax: (02) 9399 9617
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