- This topic has 13 replies, 4 voices, and was last updated 2 months ago by .
26/07/2018 at 5:35 pm #11793jacksonlyn18Flatchatter
I live in a complex of 83 villas in NSW. One of our by-laws is a no pet policy. A villa owner is reqesting to keep a dog. They have asked for mediation on the grounds our by-law is harsh, oppressive and unconscionable by-law creating a blanket prohibition on the keeping of pets without any option to enable consideration of individual facts and circumstances.
The committee thinks it is a waste of time going to mediation due to the fact the committee will not allow the dog and the owner clearly wants the dog, so no backing down., and Fair Trading have told us we do not have to have mediation. The majority of owners in this village do not want dogs, period, and we have signatures to that effect.
The next step will be the tribunal. I am wondering if there are any cases where the no pet policy is allowed to continue, or has the tribunal overruled and allowed pets in villages where they are clearly not wanted.
My other question is, if this person wins the case, can they ask the owner’s corporation to pay costs.26/07/2018 at 9:57 pm #30073
I am not particularly in favour of buildings that have blanket “no pets” by-laws, but I am even less in favour of people who buy into buildings with by-laws that they don’t like and then try to force everyone to abide by THEIR rules.
Mediation is an obligatory precursor to a Tribunal action for people who want to run a case against other owners. By not turning up, regardless of what the majority opinion is, you could give the impression that either you don’t care or that you don’t respect the system.
The owner who wants the dog is obviously planning to go all the way to the tribunal. What you want is as many signed letters as you can get from owners saying that one of the reasons they bought into the scheme is that they didn’t want to live around pets.
That’s all they need to say – going on about barking dogs or fleas or whatever just gives the other side opportunities to pick holes in your argument.
Even a petition that said “I bought into this scheme because it doesn’t allow pets … and allowing pets would discriminate against me,” would carry a lot of weight.
Let us know how you go.
And no, you probably won’t get costs awarded against the owner unless they delay proceedings, and are otherwise obstructive.11/12/2019 at 5:55 pm #46195
jacksonlyn18, what was the outcome of your experience at the tribunal? Did it settle at mediation? Or proceed to NCAT? If so, what was their decision?
We have a similar situation in our small NSW Over 55s strata block with one owner out of four who has inherited his unit from his father, is trying to sell it and wants to change the by-law prohibiting the keeping of any animals except assistance animals, fish or birds because he can’t find a buyer and says that the by-law is ‘not in line with modern standards or expectations’.11/12/2019 at 6:03 pm #46240
Casuarina said: “Jacksonlyn18, what was the outcome of your experience at the tribunal?”
That was posted in July last year so the OP may have wandered off to worry about other matters.
In any case, matters have moved on with two large “never pets” blocks having their no-pets by-laws overturned at NCAT.
I believe both are appealing the decisions so it is far from resolved, but it may be worth keeing an eye on these cases. The first concerns the Elan in Kings Cross and the second the Horizon, just down the hill in Darlinghurst.
Needless to say, we’ll be watching to see what the final outcome is in either case.
11/12/2019 at 7:53 pm #46265
- This reply was modified 3 months, 3 weeks ago by .
Thanks Jimmy-T. I have been following the Elan and Horizon cases and listening to you and Sue on the podcasts discussiing the issues.
But I think we have a different situation and wonder if you agree. Our by-law was proposed and passed unanimously by all four owner/occupiers in mid 2016. Then when all by-laws were required to be reviewed in 2017 it was again endorsed by a 100% vote.
At present, with one unit vacant following the death of the owner, the other three owner/ occupiers with 76% of the unit entitlements do not wish to live with pets and see no reason to change a by-law that is based on what was a model by-law prohibiting the keeping of animals (other than assistance animals) but watered down to allow birds, fish and, in an emergency, visiting animals overnight.
The recent finding by a Queensland magistrate supporting the rights of a small community to make whatever rules they choose to match their own lifestyles gives us comfort, as does the 55 page Horizon judgement that suggests that small strata schemes are in a different category.
However, at present it seems that every real estate agent is peddling the notion that a ‘no pets’ by-law is unconscionable and able to be overturned by application to NCAT. Are they right?11/12/2019 at 9:35 pm #46280
The recent Queensland ruling that you quoted has been overturned by a Referee (whatever that is).
I think in your case, all you can do is wait and see what the other owner is going to do, and decide if you want to keep the by-law and “dare” them to bring in an animal.
Even though I am pro-pet, I am also pro-community and if a small community such as yours is against pets, and will be directly affect by their introduction, then I think you should have the right to continue to say no.
Is is not “unconscionable” and “discriminatory” for people who don’t want to be around animals to be forced to put up with them because one person has chosen to ignore by-laws that were in place long before he or she bought into the scheme?12/12/2019 at 12:48 am #46291
Sorry if I was not clear about the facts but the owner complaining did not buy into the scheme. He inherited it when his father (who voted for the by-law) passed away. He does not live there or intend to live there and is trying to sell it.
On advice from his real estate agent that most potential buyers (they say 50%) have cats or dogs, he asked to have the by-law changed to allow pets. When this was refused by a vote of 76% to 24%, he lodged an appeal with NCAT which has insisted on mediation as a precursor to any hearing.
We are currently preparing to attend mediation, a week before Christmas. The mood is not to compromise but hold firm as none of the residents wish to live with pets or the tension that a pet in the building will inevitably bring.12/12/2019 at 12:59 am #46318
Sorry. I didn’t pick up on the inheritance angle.
If I were you I would dig in on this – he wants to disrupt the community’s standards to increase his chances of selling. That’s not fighting discrimination – it’s blatant opportunism.
Anyway, who’s to say there aren’t people out there now hanging out for a no-pets strata scheme that isn’t likely to change, now that by-laws are being overturned.
Nothing will be decided at mediation. The Fair Trading mediator will ask you to compromise (becasue that’s what they do) and you simply don’t have to. Relax but stand your ground. NCAT is where the action is.
21/01/2020 at 7:06 am #48088
- This reply was modified 3 months, 3 weeks ago by .
You were right Jimmy. Now we are off to NCAT – so my next question is about raising a special levy to fund the OC’s legal defence of the by law being challenged.
Does the applicant, who is an owner and a member of the OC, have to contribute to the costs of defending his own appeal? He claims to have advice from NSW Fair Trading that he is exempt. If this is correct, can you point me to the relevant section of the Act?21/01/2020 at 10:02 pm #48097jacksonlyn18FlatchatterChat-starter
Apologies for not advising outcome of keeping an assistance animal. The OC received a letter from Minddog who conduct the training of assistance dogs, so the OC didn’t have a choice but to allow the dog to stay.21/01/2020 at 10:02 pm #48099kaindubFlatchatter
I think you meant action or matter rather than appeal. (Appeal comes after a court judgement)
In any case , it is the OC defending the action, and whilst defending the action all OC legal costs are paid by the OC. The costs come out of the administrative fund (or there may be a special levy) but in any case all lot owners contribute according to their unit entitlements.
If the owner refuses to pay whilst proceedings are under way, then he becomes unfinancial (that means they cannot vote at meetings) and after one month penalty interest applies.
Section 90 of the SSMA says that a court can award costs. These are awarded after the case is completed. The usual way costs are awarded is that the loser pays the winners (reasonable) costs. Section 90 says the court can award the costs to be apportioned at the courts discretion. That means that a winning owner may not have to contribute to the OC legal costs. BUT it is up to the discretion of the court.
If you have not yet engaged a lawyer, do so. To me there are persuasive arguments for both sides. A lawyer will be able to advise you what chance you have of being successful. You then decide to take the risk or not.
From my experience (not at NCAT though) a court can be a crap shoot. Its not that the courts are unfair, nor unprofessional. Its that the side with the most persuasive argument (ie the better lawyer usually) will get the favourable ruling.21/01/2020 at 10:03 pm #48098
I’m confident enough to answer my own question now:
Yes, the applicant has to pay his share of a special levy. However, under Section 104 of the Act, if, and only if, he is successful, his contribution to legal fees must be refunded.
Does that sound right to you?21/01/2020 at 10:15 pm #48106
I had already answered this and this stupid platform is deleting my responses (I’m only the webmaster, for heaven’s sake!)
Section 90, below, says the Tribunal can award costs to be paid by specific owners, namely the owners corporation but not the winning owners, via a special levy.
Section 104 (also below) says the Owners Corp can’t ask for a share in costs from owners successful in seeking orders against it, or in defending orders sought by them.
I think the difference is that in Section 90, the parties are seeking a resolution of a dispute but under Section 104, one or other side is seeking orders.
And the significant difference is that under S90, the Tribunal may rule on costs whereas under S104 there is no leeway – the winner can’t be expected to pay.90 Contributions for legal costs awarded in proceedings between owners and owners corporation
This section applies to proceedings brought by one or more owners of lots against an owners corporation or by an owners corporation against one or more owners of lots (including one or more owners joined in third party proceedings).
The court may order in the proceedings that any money (including costs) payable by an owners corporation under an order made in the proceedings must be paid from contributions levied only in relation to the lots and in the proportions that are specified in the order.
The owners corporation must, for the purpose of paying the money ordered to be paid by it, levy contributions in accordance with the terms of the order and must pay the money out of the contributions paid in accordance with that levy.
This Division (other than provisions relating to the amount of contributions) applies to and in respect of contributions levied under this section in the same way as it applies to other contributions levied under this Division.104 Restrictions on payment of expenses incurred in Tribunal proceedings
An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.
An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose.
In this section, a reference to includes a reference to proceedings on appeal from the Tribunal.
05/02/2020 at 6:08 pm #48308
- This reply was modified 2 months, 2 weeks ago by .
Just to wrap up and report to anyone who may have been following our saga which was shaping up to be an interesting test case involving the validity of a limited pets by law
- In a very small strata scheme
- In an Over 55s development (average age of occupants -75)
- Concerning an application to NCAT by a non-resident owner and
- Involving no actual pet
Fortunately for the OC, the applicant withdrew a week before the NCAT directions hearing.
And no special levy was raised so there was no argument over whether everyone including the applicant had to pay.
Thanks for the advice above. Back to where we were – for now.
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