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  • #52467
    Avatarflossyb
    Flatchatter

    Hi Jimmy,

    I’m seeking urgent advice on this. I’m in negotiations to buy a property that was previously pet friendly but brought in a blanket ban in 2013 (the real estate agent was unaware of this when we started proceedings).

    The vendor is the secretary for the Oweners Corporation, so when I brought this to their attention, she scheduled it as a motion to be overturned in the next AGM and since received this email from the Strata Manager:
    <p style=”font-weight: 400;”>”I have spoken with the committee and they are happy to allow the pets and have the pet by-law adopted and the decision ratified at the next Annual general meeting.Could you please complete the attached pet application form and send it back for consideration asap.”</p>
    The issue is that the next AGM isn’t until December. I am hoping to exchange contracts this week prior to an auction at the end of the month. My conveyancer is very hesitant as she said that until the by-law is repealed I am not protected legally. I understand that changing by-laws is a fairly lengthy process and will cost me.

    The real estate agent and vendor have given me lots of assurances (“only the vendor and co-secretary actually turn up to strata meetings and vote etc etc) but I’m very nervous. It is absolutely unconditional that I can keep my pet with me in any building that I buy.

    Should I have more confidence now that this ruling has been overturned?

Viewing 10 replies - 1 through 10 (of 10 total)
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  • #52620
    Jimmy-TJimmy-T
    Keymaster

    The dust has not quite settled, but it is close. Tell ’em what you like Jimmy.

    If you listen to this week’s Flat Chat Wrap podcast, which goes up later today, you’ll hear strata lawyer David Sachs explain the legal situation as it stands.  To some extent, The Hood is correct, technically at least.

    The no-pet by-laws that exist can stay on the register until such times as they are removed by the Owners Corporation, and the strata committee or strata manager could theoretically issue notices to comply based on them.

    However, this would be done in the almost certain knowledge that the tribunal (NCAT) would reject the NTC because of the Court of Appeal ruling.  Which leads to the question, why would any strata committee bother pursuing a complaint that was bound to fail?

    Anyone looking to buy into a building with a “no-pets” by-law might face some resistance but it would not mean they’d lose the pet.  In FlossyB’s case, that resistance has already gone and she can happily move ahead with confidence.

    For other schemes, though, you might consider how strongly feelings are running against pets, especially if the block has recently reconfirmed its objections to them. Do you really want to start your life in a new home as its  most-hated resident?

    Meanwhile David reckons that a High Court appeal is far from guaranteed, partly because of cost – “more than the Appeals Court but less than a defects claim” – and partly because the High Court might decline to rule on an issue that only relates to one state.

    #52550
    Jimmy-TJimmy-T
    Keymaster

    My point was more that the agent and SC both seem to have a rather limited and incorrect understanding of the Act so does one wish to buy into that?

    Yes, the Horizon could, with the support of other anti-pet and pro by-law strtata schemes, appeal to the High Court.  And we might see moves in the next week or so in that direction.

    My concern with your previous posts were that you seemed to be advising FlossyB not to buy into a block because there is confusion over a pet by-law, despite the fact that the by-law has effectively been trumped by the Court of Appeal and there is a willingness within the strata committee and its managers to accept the pet in any case.

    That’s what I was referring to as “alarmist”.  If we stopped buying apartments because strata committees and strata managers were  a bit shaky on the law, the real estate industry would collapse overnight.

    • This reply was modified 3 days, 13 hours ago by .
    #52547
    AvatarThe Hood
    Flatchatter

    My point was more that the agent and SC both seem to have a rather limited and incorrect understanding of the Act so does one wish to buy into that?

    Today I enjoyed Happy Hour with Amanda Farmer who had Jo Cooper and Sharon Levy on the pod cast and no one was being ‘alarmist’ discussing the legal option for the OC who can apply for special leave to the High Court.
    The dust has not quite settled, but it is close.
    Tell ’em what you like Jimmy.

    #52525
    Avatarflossyb
    Flatchatter
    Chat-starter

    Ok thankyou everyone for your helpful feedback. I have received approval for my specific pet application from the Strata Manager.

    “The current strata committee has approved the pet application with the pet by-law being ratified at the upcoming AGM.”

    I think this leaves me in a fairly strong position, should the AGM vote against repealing or changing the by-law (as opposed to ratifying the SC decision as you said The Hood) to be able to take this to NCAT if necessary. Hopefully that would not need to happen!!!

    I put in an offer and it has been accepted so now a sickening wait until the December AGM!

    #52501
    AvatarThe Hood
    Flatchatter

    Should I have more confidence now that this ruling has been overturned?

    What a circus.

    First thing I would say is that if there is a blanket ban pet by law then the SC has no authority to make any approvals.

    ”I have spoken with the committee and they are happy to allow the pets and have the pet by-law adopted and the decision ratified at the next Annual general meeting.
    Could you please complete the attached pet application form and send it back for consideration asap.”

    There is so much wrong about that email.
    The SC can’t over ride the by-law even if the by-law is now arguably of no force.

    The SC can’t guarantee the by-law will be repealed or changed at the AGM.
    The AGM would need to repeal or change the by-law; not ratify the SC decision.
    I think that agent and SC both have a poor working knowledge of the Act.
    That seems clear.

    Changing a by-law is relatively simple and it should not cost you. If an annual general meeting, by special resolution, decides to change, amend, repeal a by-law then it is typically a function of the OC to register it.

    There is a period in which the OC in the Cooper case can seek leave to appeal the matter to the High Court. If the OC from Cooper decides not to do that then you can  have a good degree of confidence that if necessary you will prevail at NCAT if the OC wants to try to apply their blanket ban.

    I’d be more concerned about what conditions the OC might place on an approval if they do change the by-law.
    I think we will see some pretty stiff criteria from some OC’s who really do not want dogs.

    Note to The Hood:  Please use “Quote” properly.  It’s only the relevant part of the post that should be in quote format … not the whole post.

    • This reply was modified 6 days ago by .
    #52509
    Jimmy-TJimmy-T
    Keymaster

    There is so much wrong about that email. The SC can’t over ride the by-law even if the by-law is now arguably of no force. The SC can’t guarantee the by-law will be repealed or changed at the AGM.

    If the by-law is no longer enforceable – and it definitely isn’t –  then it doesn’t matter whether or not the OC can revoke it.  The by-law has effectively gone and all the “if and ands” won’t save it.

    Your post is unnecessarily alarmist.  The FlossieB should go ahead and fill in the form.

    The only thing that would change the situation would be if the losing side asked for a “stay” of the implementation of the ruling, prior to an appeal, and they haven’t.

    The “no pets” by-law may still be there in print but it has ceased to exist in terms of there being repercussions if FlossieB takes a pet into the block.

    However there are model by-laws that contol the  conditions for allowing pets and they come into force in the absence of other effective by-laws.  Hence the form still being valid.

    • This reply was modified 5 days, 13 hours ago by .
    #52486
    Avatarflossyb
    Flatchatter
    Chat-starter

    Thanks for your advice Miranda. My nerves are based on the fact that I intend to be owner occupier, and although settlement might not have occurred by December, I wouldn’t be able to back out without losing my deposit by that point. I think your point on hiring a strata lawyer would be very wise. Thanks

    #52487
    AvatarThe Hood
    Flatchatter

    I find it a little humorous that it is being reported that no one saw this coming and terms to that effect.
    If anyone has ever read Cathy Sherry’s work then this was inevitable, if not in Cooper then in the near future perhaps by virtue of legislative reform.
    Honestly: should unaffected people be able to make by-laws that do little more than disadvantage others?
    Of course they shouldn’t and finally the Court of Appeal is expressing that.

    The power to make by-laws has previously been viewed as far too broad; finally a sensible constraint.

    The only annoying part, and it isn’t really that annoying, is that I now have to remove pages of argument from my strata review submission that related to the absolute idiocy of what amounted to mob rule in strata.

    Cooper at 48.   “…a liberal democracy is not a majoritarian dictatorship; it operates under legal constraints designed to protect minorities from oppression….”

    Shame on all those who subscribed to “mob rule”, you have made strata a disaster for way too long.

    #52490
    scotlandxscotlandx
    Strataguru

    flossyb – you don’t need a strata lawyer. The effect of the decision is that a blanket ban on keeping of animals is harsh, unreasonable, oppressive etc. – therefore any by-law that bans the keeping of animals outright has no force. Because it is a Court ruling there is no time when it takes effect, the Court has ruled.

    This does not prevent a strata scheme having the standard by-law which provides that an owner may keep an animal with the consent of the OC, and that consent cannot be unreasonably withheld. The by-laws can also impose conditions on the keeping of an animal. So you may still need to seek approval.

    Luke – no, a ban on fish or birds, would fall into the same category, i.e. harsh, unreasonable, oppressive. However there may be specific instances where an OC has a good reason to refuse permission to keep a certain type of animal.

    #52482
    AvatarMiranda
    Flatchatter

    December is only 2 or so months away.   Settlement may not have even taken place by then and you may  not have even moved in.   As this is a ruling made in Court I doubt that whatever they vote can have any bearing on it.  I understand your nervousness but the law is on your side.  I’m not sure when it officially comes into effect but you will find that on the internet somewhere.  If it were me, and wanting certainty, I would contact a strata lawyer (maybe the one advertised here) who I’m pretty sure could put your mind at rest.

    Have to add that I’m so glad that the by-law has been repealed and that responsible pet owners don’t have to deal with such foolishness any more.  Other owners still have freedom to object if the pet is causing nuisance,  so it’s win win in my books.  .

     

     

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