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  • #53575
    Isabel Masterton
    Flatchatter

    I live in a large apartment block.  I have made a couple of submissions to the Strata managers (who then passed them onto a Body Corporate meeting).  I referenced the case in October when the By-Laws were overturned but they said that was just one case.  Twice I’ve been refused.  The reply to my second submission was a letter to all owners reiterating that The owners Corporation has no authority under the present By-Laws to allow any pets in the building unless it is a trained Assistance Dog.

    I’ve ben in touch with the Law Society who were very helpful and I finished up receiving a phone call from a Solicitor.  He says they can’t stop me having a small pet (I already told the Strata people that it would be a tiny dog and that I would be very respectful of all other tenants and would carry it in a waterproof basket in any of the common areas) and that he would help me.

    I’m waiting for him to send me a form now for me to sign to start the Mediation/Tribunal process, but I’m still waiting and wonder if there is a quicker way to go about this.  The solicitor said it could take some time because there will be a huge backlog.

    I’m wondering if I could ask them what has to happen to change the by-laws but I’m guessing if it’s an Owners Corporation decision, then they would have to send a letter to all owners on the subject asking them to vote, and I’m pretty sure most of them will say no.

    Is there any way I can fast track his? .  if it’s going to take a long time, or not happen at all, then I will get my apartment on the market and move to where I can have a little dog, which would be a huge upheaval.

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  • #53578
    Jimmy-T
    Keymaster

    Your strata managers and committee are technically correct but they are being a bit cute in ignoring the realities of the situation.

    The Court of Appeals is the highest court in NSW.  Its verdicts create precedent for every court in the state (and to some extent, elsewhere in the country). They are as good as law at the NCAT level.

    Your strata committee and strata managers are also being a bit naive in thinking they can cling onto a by-law of the type that has been shown to be fundamentally flawed when they should be trying to devise one that protects the amenity of the building in other ways.

    One of the losing blocks in the recent highly publicised pets stoush (not the one named in the Court of Appeal) has already changed its by-laws accordingingly.

    Your strata managers’ statement that they don’t have the authority to allow pets may be correct, but they neglect to say that their by-law is incompetent in preventing them and is wide open to be challenged.

    This is what the strata Act says:

    139   Restrictions on by-laws

    (1) By-law cannot be unjust

    A by-law must not be harsh, unconscionable or oppressive.

    Note— Any such by-law may be invalidated by the Tribunal (see section 150).

    Blanket by-laws banning pets have already been found to be “harsh, unconscionable or oppressive” by the highest court.  No Tribunal Member in his or her right mind is going to go against that.

    So how do you short-circuit the process?  Simple. Get your wee dog and wait for the strata manager to issue a Notice To Comply with the by-laws. Turn up at NCAT  and point the Member at the Court of Appeals Ruling.

    Even better, tell the strata manager  and committee in writing that both they and you know that their NTC is incompetent, the by-law is invalid and as a result, theirs is a vexatious case and you will be seeking all costs to be awarded against the owners corproation.

    By the way, unless the solicitor who has offered to help you is prepared to seek costs from the OC, I wouldn’t bother with them.  You’d be wasting your money.  You don’t need a solicitor as this case could not be more clear cut.

    And you don’t need to run this through Fair Trading either.  You are not the one at fault.

    But if you feel you need professional legal advice, click on this link to Marrickville Legal Centre and they will advise you properly and probably send a letter to the strata committee telling them to pull their heads in.

    Oh, and if you do contact MLC and you get a result, you might want to put a few dollars in their Christmas funding appeal.

    • This reply was modified 1 month, 1 week ago by .
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