Pets
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Pets can be a source of friction between neighbours in houses with individual fenced gardens, so it is likely they will be more so in owners corporations.
The 2020 amendments to the Unit Titles (Management) Act do not allow Owners Corporations (OCs) to completely ban the keeping of pets and only allows the OC to regulate their presence in the development.
Any OC Rule banning pets is now highly likely to be invalid.
OCs now have 3 options for regulating pets;
the OC adopts the Default Pet rule either by doing nothing or actively adopting the Default rule
the OC adopts a Non-Standard Pet Rule that they devise
the OC adopts a Non-Standard Pet Rule that says application and approval are required before the pet can enter the OC.
The Default Rule option
1.5 Pets in units
(1) A unit owner or occupier (the pet owner) may keep an animal, or permit an animal to be kept, within the unit if -
(a) the total number of animals kept within the unit (other than birds in a cage or fish in an aquarium) is not more than 3; and
(b) the pet owner ensures that the animal is appropriately supervised when the animal is on the common property; and
(c) the pet owner keeps the animal secure so that it cannot escape the unit unsupervised; and
(d) the pet owner cleans any area of the units plan that is soiled by the animal; and
(e) the pet owner takes reasonable steps to ensure the animal does not cause a nuisance or a risk to health or safety.
(2) The pet owner must, within 14 days of the day the animal is first kept within the unit, tell the owners corporation, in writing, that the animal is being kept within the unit.
The Default Rule presupposes that the OC is happy to have an arrangement where there is no application and pre-approval process; the pet owner simply says there is a pet around the time it arrives or after it has arrived. If the pet proves to be noisy and disruptive, the OC is then faced with Rule Infringement action under 1 (b) to (e) or ultimately ACAT (see below).
If the OC is happy with that result, it could actively adopt the Default Rule any time until its second AGM after 1 November 2020. Or it can do nothing and the Default Rule will automatically apply from the day after the second AGM after 1 November 2020 (S170).
For OCs with a fairly laisse faire attitude to pets doing nothing and having the Default Rule automatically applied could be the simplest way to go.
This method means that S32 of the UT(M)A is effectively turned off and the OC relies on the Default Rule.
The Non-Standard Pet Rule option
Like any other Non-standard Rule, a Non-standard Pet Rule cannot conflict with the Unit Titles (Management) Act.
S32 of the UT(M)A provides
32 Unit owners etc keeping animals
(1) A unit owner or occupier of a unit may keep an animal, or allow an animal to be kept, within the unit or the common property—
(a) if the animal is an assistance animal; or
(b) if the animal is not an assistance animal, only if—
(i) if the rules of the owners corporation include a pet friendly rule—the animal is kept in accordance with the pet friendly rule; or
(ii) the owners corporation consents to the animal being kept.
Note Other territory laws also apply to keeping animals—for example, Animal Diseases Act 2005, Animal Welfare Act 1992, Nature Conservation Act 2014 and Residential Tenancies Act 1997.
(2) The owners corporation may give consent under this section with or without conditions.
(3) The owners corporation—
(a) must respond to any request for consent under this section and the response must—
(i) be in writing; and
(ii) if the request is refused—give reasons for the refusal; and
(iii) if the consent is given subject to conditions—state the conditions; and
(b) may delegate its decision-making power under this section to the executive committee; and
(c) is taken to consent to the request if the owners corporation does not take action under paragraph (a) within 3 weeks of the day on which the request was made.
Note The owners corporation may also delegate this power to the manager (see s 58 (1)).
(3A) The owners corporation may—
(a) only withhold consent on reasonable grounds; and
(b) impose reasonable conditions on the consent.
Examples—par (a)
1 unacceptable risk of damage or soiling of common property that cannot be addressed through reasonable conditions
2 unacceptable risk of nuisance to other unit owners or occupiers that cannot be addressed through reasonable conditions
3 unacceptable risk of the animal escaping the unit unsupervised that cannot be addressed through reasonable conditions
4 unacceptable risk to health or safety of other unit owners or occupiers or the general public that cannot be addressed through reasonable conditions
5 keeping the animal on the units plan would be contrary to a territory law
Examples—par (b)
1 requiring supervision of the animal when the animal is on the common property
2 requiring cleaning of any areas of the units plan that are soiled by the animal
3 requiring the unit to be secured to prevent the escape of the animal
(4) In this section:
animal includes—
(a) an amphibian; and
(b) a bird; and
(c) a fish; and
(d) a mammal (other than a human being); and
(e) a reptile.
occupier includes a person who has entered into a residential tenancy agreement in relation to the unit even if—
(a) the residential tenancy agreement has not yet started; or
(b) the person has not yet taken possession of the unit; or
(c) the person has not yet obtained any required consent from the lessor to keep an animal in the unit under the Residential Tenancies Act 1997.
This section requires the OC to respond to any application, to refuse only on reasonable grounds or apply only reasonable conditions.
S112C provides further advice on the scope of a Non-standard Rule.
112C Owners corporation may make pet friendly rule
(1) The owners corporation may, by special resolution, make a rule allowing an owner or occupier to keep an animal, or allow an animal to be kept, within a unit or the common property without the consent of the owners corporation (a pet friendly rule).
(2) A pet friendly rule may include conditions about—
(a) the number and type of animals that may be kept by a unit owner or occupier under the rule; and
(b) cleaning and maintenance requirements for keeping an animal under the rule; and
(c) providing written notice to the owners corporation about the keeping of an animal; and
(d) supervision requirements when an animal is on the common property; and
(e) requirements in relation to keeping an animal secure so that it does not escape a unit unsupervised; and
(f) any other matters that are reasonably necessary to ensure that an animal does not cause a nuisance or a risk to health or safety.
So a Non-standard Rule does not give an OC an opportunity to create a ‘no pets’ rule by subterfuge. A Non-standard Rule needs to follow the requirements of Ss32 and 112C to be valid.
Adoption of a valid Non-standard Rule turns S32 off and the OC relies on the Rule.
An occupier of a unit now includes a person who has entered into a residential tenancy agreement in relation to the unit even if the residential tenancy agreement has not yet started, or the person has not yet taken possession of the unit, or the person has not yet obtained any required consent from the lessor to keep an animal in the unit under the Residential Tenancies Act 1997. So the OC cannot make requirements like only the unit owner can apply for approval, because the tenant has a statutory right to apply themselves.
If the animal proves disruptive, Rule infringement action can be applied or ultimately ACAT.
The Application and Approval option
If the OC wants to retain a level of supervision over pets coming into the OC, it can adopt a Non-standard Rule that provides the resident has to apply for approval. Then S32 remains in force and provides the mechanism under which the occupier seeks approval and the disciplines on the OC’s decision making.
Again this is not a ‘no pets’ option. The OC must respond to any application, can refuse only on reasonable grounds or can apply only reasonable conditions.
It is now up to OCs to chose the course they wish to follow. If they are not happy with their initial choice they can revise their processes as necessary.
Assistance Animals
S32 and S108(4) provides a blanket permission for assistance animals. The OC may ask for proof the animal is an assistance animal but has no power to refuse consent for the animal being kept or to set conditions on its being kept in the unit or being on the common property in its assistance role.
32 Unit owners etc keeping animals
(1) A unit owner or occupier of a unit may keep an animal, or allow an animal to be kept, within the unit or the common property—
(a) if the animal is an assistance animal
108 Owners corporation may make alternative rules
(4) An alternative rule is not invalid under subsection (3) (a) only because it requires a person who keeps an assistance animal to produce evidence that the animal is an assistance animal.
Note A unit owner or occupier is not required to obtain the consent of the owners corporation to keep an animal that is an assistance animal within the unit or common property (see s 32 (1) (a)).
The UT(M)A defines an assistance animal as
assistance animal—see the Discrimination Act 1991, section 5AA (3).
The Discrimination Act says
(3) In this section:
assistance animal means an assistance animal trained to assist a person with disability to alleviate the effect of the disability (including by guiding a person who is blind or vision impaired or alerting a person who is deaf or hearing impaired to sounds), that satisfies any requirements prescribed by regulation.
The Discrimination Regulation says
2 Requirement for assistance animal—Act, s 5AA (3), definition of assistance animal
An assistance animal must be—
(a) accredited as an assistance animal—
(i) under a law of a State or Territory; or
(ii) by an organisation that trains animals to assist a person with disability to alleviate the effect of the disability; or
(b) trained to—
(i) assist a person with disability to alleviate the effect of the disability; and
(ii) meet the standards of hygiene and behaviour that are appropriate for an animal in a public place.
If the animal does not meet the Discrimination Act tests it is then subject to the Default Rule or Non-standard Rule.
Refusal to acknowledge Assistance Animal status would ofcourse be a matter for ACAT to finally determine.
Dispute Resolution
Under S129 (1)(l) if ACAT considers that the animal causes a nuisance to the owners or occupiers of other units, or unreasonably interferes with the use or enjoyment of the common property by other units, ACAT may make orders
to remove the animal from the premises within a stated time; or
any other order the ACAT considers will end the nuisance or the unreasonable interference with use or enjoyment.
We will see how these amendments play out over the coming years and what Pet Friendly Rules OCs make, what disputes go to ACAT and what ACAT decides.
But it should also be noted that the ACT government now requires that not only are all dogs are registered from 8 weeks old or 28 days after they enter the ACT but also that their ownership and address details are updated annually at no cost to owners.
The ACT Government intends to introduce legislation that will from 1 July 2022 require that existing and new cats in households are registered and their details updated annually and that all new cats acquired after I July 2022 are permanently contained inside dwellings or in runs.
The ACT government also intends to take action to eliminate feral animals predating on native fauna.
The pet problem that causes most difficulties in OC's is barking dogs. Prolonged barking is either a result of boredom or lack of socialisation. The solution to this animal behaviour problem lies in the hands of the animal’s owner. Advice is available here and here.
The EC might like to contact the ACT Domestic Animal Services (DAS) on 13 22 81 to get advice on what an owner can do to rectify the problem and if appropriate to get DAS to assist the owner.
If your EC or OC seems unwilling to take action to handle poor behaviour by pets, contact Domestic Animal Services (DAS) on 13 22 81 to initiate a complaint and go through all the steps DAS advise. For example a minority of residents, who are on the premises when the pet owner is away, may be the only ones hearing a dog barking. The EC may well not be derelict in its duties, it doesn’t have the full context. The DAS complaint process requires regular recording of the dates and times of the disturbance and that evidence may be enough to bring about internal action. If not, proceed calmly to lodging a complaint with DAS and allow the DAS process to take its course.