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  • #10112

    We live in a townhouse complex of 12 and have a by-law preventing the keeping of any animal on the premises (apart from guide dog or hearing assistance dog). A prospective purchaser of one townhouse is claiming to have medical approval to keep an assistance animal. We are not aware of what the purchaser’s disability is and he will not present his doctor’s certificate, only a letter from the doctor claiming that he “is advised to obtain an assistance animal to deal with the symptoms of the condition.” I have met this person and they appear to have no physical disability and he has a partner.

    As a member of the EC we are concerned that there is a precedent being set and also that the townhouse in entirely unsuitable for a dog – small paved courtyard, no garden and adjoining common wall units either side. There is no common property garden or open space area.

    The purchaser is knowingly moving into a small complex where the majority of owners clearly do not want pets on the property, but wants to put their (presumed) needs above others.

    Has anyone experience in this area? Any advice? Thanks

Viewing 13 replies - 1 through 13 (of 13 total)
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  • #53273
    rickjo
    Flatchatter

    Replying to the original post…  Although not a solicitor, i have experience in this area.

    You are not permitted to ask what sombody’ss disability is = discrimination

    what the doctor wrote ” “is advised to obtain an assistance animal to deal with the symptoms of the condition.” is sufficiant.

    you casting your judgement ”    I have met this person and they appear to have no physical disability and he has a partner….   so what??? you are not a clinician…..  disabilities are also hidden….  ( showing your ingnorance )

    then to say ” The purchaser is knowingly moving into a small complex where the majority of owners clearly do not want pets on the property, but wants to put their (presumed) needs above others. ”

    101 lession…  A guide dog, hearing dog, or assistant dog, or any other animal trained to help eliveiate the dissability is not classified as a pet – they have rights under the Dissability Discrimination act 1992,  in short as any of these animals are considered a medical requirement, it would be no different according to law, if you were to say to an owner, we dont like your walker mobility aid, we order you to get rid of it, or prevent them from using it.

    In short the 1992 DDA outweighs any strata by laws…..  so for those of you who think, we wont have any assistant animals in our building premises…. get ready to lose in court… simple truth,  plus the Humans Rights and equal opportunity commission just wait to hear these delightful stories…

     

    • This reply was modified 6 months, 3 weeks ago by .
    #24091

    Because of your help /knowledge and the ability to chat about it with an outsider, reading some of the other parts of this forum has been great, it has given me some good ideas and possibly the ability to open up some good discussion with the owners and management.

    I’ve got my fingers, toes and legs crossed that we can get a positive outcome from all of this bother, once the heat settles but then again I am a newbie to Strata Living so I probably shouldn’t set my hopes to high…

    I have already started to jot down some ideas for the By-Laws that we could look at adopting. Your help with regards to our legal letter has been helpful to. I had a chat to management and I think they will reply in kind without engaging a lawyer, along the lines of mediation with their client.

    Strata Living certainly doesn’t make for a dull life in semi retirement….

    #24246
    Jimmy-T
    Keymaster

    @strata Newbie said:

    I believe that we have the right to set down the terms of acceptance of which the owner needs to adhere to not the owner dictating  terms to the majority.

    That is true – but only if you do it via a by-law.  And if you are going to pass a by-law, then you should start with a discussion about what the majority of owners really want and what regulations you need to achieve that.

    #24245

    That was what I was thinking.

    I  see this as a threat letter, go away, leave our client alone. I’m keeping my animal.

    I believe that we have the right to set down the terms of acceptance of which the owner needs to adhere to not the owner dictating  terms to the majority.

    #24244
    Jimmy-T
    Keymaster

    It strikes me that the lawyer has pulled down a previously used or template letter and just added some (but not all) specific references.

    I would write back and say that their letter doesn’t make sense, doesn’t address the issues and the committee will proceed as it sees fit.

    #24243

    Thank you for information and references to relevant Acts etc…  It is a hell of a maze of information to digest.

    As you can understand we were a little confused with the lawyers letter as, as we see it they are referring the animal as: 1. Pet  Companion not an assistance animal.

    I believe the majority of our owners would not wish to go all bushed up to a lawyer regarding this matter, but  also don’t want to be bullied by an owner who believes the rules do not apply to them. We also need to be so so careful that this does not  set a precedent for future owners/tenants who want to circumnavigate our policy rules.

    Mediation was hopeful but the owner in question is having nothing to do with us and does not wish to discuss  unless we go through the lawyer.

    Has any kind forum member have a suggestion how we can proceed / respond to this legal letter. As I am guessing we will need time to organise a meeting of owners to discuss reviewing our by-laws and put in place safe guards to protect the majority of owners who still wish to live in a community that has a no pet policy.

    or

    Could /should we use delay tactics and request the certification for this assistance animal…. If that is the case they are putting forward…. Guess we need it clarified.. Is it a companion or assistant animal…

    #24242
    Jimmy-T
    Keymaster

    (c) prevent an occupier of a unit who has a disability from keeping a relevant animal at the unit, or restrict the use of a relevant animal by the occupier if the relevant animal is trained to assist the occupier in respect of the disability; or (d) prevent a visitor to a unit who has a disability from using a relevant animal trained to assist the visitor in respect of the disability.

     

    In its Glossary, the SA strata Act refers to an Assistance animal “as defined by the Equal Opportunity Act 1984.” That Act defines a difference between an Assistance Animal and a Therapeutic Animal.  The former has to be registered with the Dog and Cat Board (I kid you not) but the latter can, indeed, be established by a doctor.

    The thing is, the strata Act says nothing about “Therapeutic” animals … only “assistance” animals.  So where does that leave you?

    You could get all bush lawyer about this and reply to the (real) lawyer’s letter saying the bird is not an assistance animal as defined by the SA strata Act or Equal Opportunities Act, therefore the exclusions don’t apply.

    Or you could take this opportunity to revise your by-laws to allow pets, provided they are not a nuisance to any other owners under any reasonable circumstances.  And you could take the opportunity to define the criteria for assistance or therapeutic animals, including, perhaps, that the doctor signing the letter also has to state what the disability is and how the animal assists.

    Doctors are great at signing “sick notes” for strata residents, not giving a damn about the effect on the rest of the community of their actions, so they should be held to account.

    That said, the health benefits of pet ownership, especially for seniors living on their own, are well documented.  Pets are also excellent for bringing communities together (yappy dogs, notwithstanding). Your bird-loving neighbour needs to be less of a dog in a manger when it comes to pets.

    One other thing, I sense the people who train assistance animals are starting to get annoyed by strata residents who claim their ordinary pet is an assistance animal, as it undermines the credibility of the real ones.

    This is what the Equal Opportunity Act says:

    88—Assistance animals

    Subject to this Act— (a) it is unlawful to impose a condition or requirement that would result in a person with a disability being separated from his or her assistance animal; and (b) a person who imposes such a condition or requirement is, in addition to civil liability that might be incurred under this Act, guilty of an offence. Maximum penalty: $2 500.

    88A—Therapeutic animals (1)

    It is unlawful for a person— (a) to refuse an application for accommodation; or (b) to defer such an application or accord the applicant a late order of precedence on a list of applicants for that accommodation, on the ground that the applicant intends to keep a therapeutic animal at that accommodation.

    (2) Subsection (1)(a) does not apply if the respondent establishes that in the circumstances of the case the refusal was reasonable.

    (3) In this section— therapeutic animal means—

    (a) an animal certified by a medical practitioner as being required to assist a person as a consequence of the person’s disability; or

    (b) an animal of a class prescribed by regulation, but does not include an assistance animal, a dangerous dog within the meaning of the Dog and Cat Management Act 1995 or a dog of a prescribed breed within the meaning of the Dog and Cat Management Act 1995.

    #24240

    We are a small self managed strata of 7 units and have had in place a no pet policy since inception as per the ( South Australian Strata title Act 1988) the majority of owners are very keen to keep in place this Policy.

    This particular owner of our Strata has been a stead fast supporter of this current policy but has just recently been challenged by a majority of owners about the housing of a Bird within the unit without permission from the corporation. The owner was asked to remove the animal.
    The owner advised that the bird is not an animal and will keep it. The corporation tried to discuss the matter and advised to try an application to the owners but we were advised by the owner was going to sell the unit keep bird and go to mediation.

    The next thing we received was this legal letter :

    Re : Owner of Unit ** – Pet Budgie companion

    We act on the instruction of our client and refer to the above matter.

    We note that at the extraordinary meeting of the Strata Corporation held on….., a vote by the committee was held in relation to “Bird” name withheld being housed at unit no **, owned by our client. Under the heading Pet Application unit No ( different unit & owner another animal) it was voted at the meeting that ‘Bird”’ name withheld was not allowed to be housed in the unit. A copy of the minutes of that meeting enclosed.

    We bring to your attention Section 19 subsection 4(c) of the Strata Title Act 1988 SA which states the following:
    (4) The articles of a strata corporation cannot-……
    (c) prevent an occupier of a unit who has a disability from keeping a relevant animal at the unit….

    Further to this, we provide a medical certificate from Dr. name withheld which state the : ‘Bird”name withheld assists with our client’s disability and there fore cannot be prohibited from being kept at unit.

    Please confirm in writing that no further action will be taken in relation to above matter.
    ………
    End of Letter

    The medical Certificate grounds are as follows:
    Owner needs companionship Bird ot assist in the management of multiple medical problems and disability.
    The loss of the animal would be detrimental to owners physical and mental health.
    ……..
    End of certificate

    As you might understand we were very surprised to receive a legal letter as apposed to a Mediation request.

    We are wondering how to proceed and respond and would it be advisable to refer the solicitor to
    The discrimination Act of 1992 Section 54A of that Act

    Also like to add that this particular owner had advised us they have had 3 birds over several years and has never applied for permission for any. The owner was also asked if the Bird should die tomorrow would it be replaced … The owner advised no I would not get another one…..

    Any advise and help would be greatly appreciated.

     

    Strata Newbie

    #23916

    Thank you all for the information and advice. We are now in the process of getting an SBL along the lines suggested (thanks Whale). For the prospective new owner we are insisting on seeing, either directly or via a third party, evidence of the alleged disability and registration/training details for the dog.

    #23888
    Whale
    Flatchatter

    Apologies to those of you who may have read my past references to our Plan’s Special By-Law for the Keeping of Animals, but as it’s working a treat I thought it was worth elaborating upon here.

    In 2013 I managed to convince our Owners Corporation (O/C) that it was pointless to persist with the Model By-Laws (in the 1996 Act & and in the 2010 Regulation) in circumstances where the first iteration of the NSW Government’s proposed changes to the Strata Schemes Management Act forecast that the keeping of pets on a Plan would be the default position.

    I also convinced our O/C that saying “NO” to each and every Application for Consent by Residents would not withstand scrutiny, and would additionally encourage Residents to instead smuggle their pets inside, to let them out in the dead of night to wander around and defecate on the Common Property, and to discretely dispose of items such as cat-litter in the toilets and to possibly cause sewerage blockages.

    So our Special By-Law (SBL) came about, where in the first instance all applications from tenants to keep a pet at a Lot have to be accompanied by a copy of a written consent by their Landlord/Owner, that has thus far been refused in all but one instance, followed by a lengthy but not burdensome list of supportive information to be supplied by all Residents.

    In the case of “assistance animals” our SBL requires supporting documentation to be supplied by Residents to show that the pet is:

    “i) accredited under a Law of a State or Territory of Australia that provides for the accreditation of animals trained to assist persons with a disability to alleviate the effect of the disability; or

    ii) accredited by an animal training organisation prescribed by the Disability Discrimination Regulations 1996 or in any Legislation that may from time-to-time replace or amend it; or

    iii) professionally trained to assist a person with a disability to alleviate the effect of the disability, and certified in writing by a Medical Practitioner as being essential to the provision of assistance to the Owner/Occupier making application under this By-Law, and by a Veterinarian as meeting the standards of hygiene and behaviour that are appropriate for an animal in a public place.”

    Then if those hurdles are successfully jumped or if they’re not applicable because the animal is just a “pet” as opposed to an “assistance animal”, then irrespective, all Residents must provide specific details of their pet including a photograph, its microchip details an its Registration papers (for cats & dogs), and as some of our Lots are quite small (e.g. studios), where the “pet” is a dog, a letter from a Veterinarian stating that they’ve personally inspected the Lot concerned and that it’s large enough to humanely keep the pet that the subject of the application.

    There are a raft of pet-specific Conditions (i.e. by type) attached to any Consents by the O/C, but suffice to say that in our experience only committed pet owners are prepared to jump over the hurdles contained in our SBL, and those who do so are the type of pet-owners who are committed to and will properly care for their pet, will abide by the Conditions of their Consent, and will therefore present no problems for the O/C or to other Residents of our Plan as a consequence.

    There are currently seven (7) Residents with Consents to keep a pet at the Plan, and whilst only two (2) of those pets are dogs, our O/C has had no problems whatsoever with the menagerie that additionally comprises birds, cats, and a marine aquarium; and that’s why our SBL is indeed working a treat!

    #23887
    Jimmy-T
    Keymaster

    This is a very interesting fact sheet on “Assistance Animals” – makes clear distinctions between the level of assistance and their relative permissions; https://www.awaredogs.org.au/our_services/

    #23886
    Stevecro
    Flatchatter

    I agree with you on this one Jimmy, too many owners buy into schemes and just want to get their way, so if they see a ‘no pets’ by law, they do whatever it takes to circumvent it. I think is a reflection of society in general where adults are turning into children because they aren’t getting what they want.

    My gripe is with ‘Companion Animals’ in strata schemes. It is a part of the entitlement mentality of our society as a whole, where one thinks they are ‘entitled’ to whatever they want regardless of any by laws or what the majority of owners want. I am certainly not anti pet, I love animals, however if a scheme chooses no pets, then that’s what should apply and should be respected (apart from guide and hearing dogs as per s49 of the SSMA).

    My friends scheme has this particular problem where certain owners who have bought in go and get a doctor to give them a certificate that they require an animal for a ‘companion’. Many of those who claim they need an ‘companion’ animal actually just want a pet, but don’t want to call it that. What happened to the days of getting a human ‘companion’ like a friend or someone of the opposite sex? As controversial as that is, that is what I have found from my experience and from others who live in strata schemes. 

    #23879
    Jimmy-T
    Keymaster

    Our esteemed legal sponsors Makinson d’Apice were involved in a case some time ago where an owner insisted he needed a hearing assistance dog to alert him to the presence of someone at his door … which the dog did by barking!?!

    Hearing assistance dogs normally alert their owners by physical behaviour. One dubious hearing test and a compliant doctor’s letter led the CTTT Member to the conclusion that it was a valid claim.  

    The yappy dog was not only allowed to stay but was given permission to bark, despite the plaintiff’s clear ability to overhear whispered conversation.

    So what do you do?  I would pass a resolution at your next EC meeting that the Owners Corp will actively defend residents’ rights to choose to live in a pet-free building, including taking such legal action as necessary to remove any animals that are not permitted under the terms of the Strata Schemes Management Act.  

    You will require owners of assistance animals to provide medical evidence of the need for the animal and for the animal to be properly trained and registered as an assistance animal. Failure to provide evidence on either count will result in action to have the animal removed.

    Setting out your stall in this way may discourage the owner … but it could forewarn them of the battle ahead.  Even so, you can go to NCAT or court having made it clear that you would not tolerate by-law breaches.

    Good luck with that.

    And before the pro-pet lobby jumps on me, I believe people should be allowed to have pets in buildings. But I also believe owners should be allowed to declare their buildings pet-free if the great majority so desire.

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