A body corporate’s pet by-law is invalid, with experts saying committees are playing a game of bluff with tenants

Queensland bodies corporate have been called out for unreasonable by-laws on pets, after the latest to be ruled invalid.

A body corporate has tried to force a couple to walk more than a dozen flights of stairs with their elderly poodle to reach their apartment after denying the dog access to the lift.

The couple refused to follow the by-laws of Trafalgar Towers, Maroochydore, that required all apartment pet owners, bar one, to use the fire escape stairs and ground-level emergency exit doors when their cat or dog entered or left the building.

Janine Smith and her husband Wayne, who own a 13th-floor unit, challenged the pet by-law at the Body Corporate and Community Management (BCCM) and won.

It’s the second time a resident has successfully taken on the pet by-laws at Trafalgar Towers through the government watchdog.

On each occasion, the adjudicator called the by-laws either “oppressive and unreasonable” or “invalid”.

Wayne Smith with Charlie the miniature poodle who was banned from entering a lift under a bylaw. Picture: Supplied

These are but two examples of bodies corporate playing a game of bluff and making life difficult for tenants wanting to keep pets, say experts.

Weight limits, restricting breeds and banning the use of lifts are all invalid by-laws, according to BCCM decisions.

Janine Smith and her husband Wayne have owned a unit within the 16-floor complex for three years.

They moved in permanently last June but they were warned that their elderly pooch Charlie, who had cancer and was blind, could not enter a lift under the by-laws.

“The Body Corporate advises that you may not take your pet in the lift, as it contravenes the animal by-law,” the body corporate manager wrote in an email.

Trafalgar Towers is on the waterfront at Maroochydore. Twice the government watchdog has ruled against the complexes pet by-laws. Picture: Trafalgar Towers

There are eight sub-sections and almost three dozen clauses of pet by-laws within the complex’s rules.

“I applied for permission to use the lift about two months before we moved in but that was denied several times,” Ms Smith said.

As the couple had applied to the BCCM for an interim order to use the lifts, they ignored the body corporate directions and were issued a breach order, Ms Smith said.

“The breach order was issued in the morning and that afternoon the interim order, allowing Charlie to enter a lift, came through,” she said.

“I would have had enough trouble walking 13 flights on my own without carrying the dog.”

Trafalgar Towers chairperson Michael Walsh wrote to owners, alerting them to changes to pet bylaws following the watchdog's orders. Picture: Supplied

Pet owners no longer have to use the fire escape stairs at Trafalgar Towers when exiting or entering the building with a dog or cat. Picture: Trafalgar Towers

A BCCM adjudicator ruled the by-law invalid in October, saying the condition were not “reasonable or reasonably necessary”.

The by-law referring to pet owners using the emergency stairs was removed with an updated version, signed by the chair Michael Walsh and secretary Sue Marshall, was released in December.

The by-law insisting anyone with a cat or dog “must use the fire escape stairs” was deleted from the title scheme rules in December although the benefits to Charlie were short lived. He died in New Year’s Eve.

In 2016, an adjudicator ordered the body corporate for the Trafalgar Towers to allow a tenant to keep a dog despite the “desire of the committee and those owners making opposing submissions, to keep the scheme pet free”.

Janine and Wayne Smith, who have to isolate for seven days, on the balcony of their 13th floor apartment. They gained an order from the government watchdog for their dog to be allowed to enter a lift at Trafalgar Towers. Picture: Lachie Millard

The adjudicator also took aim at requiring the dog to be carried in a ‘covered’ cage, a by-law that has now been removed, while using the emergency stairs.

“I consider that it would be physically impossible to carry all but the smallest of animals in a covered cage up and down several flights of stairs. I consider this part of the by-law oppressive and unreasonable.”

Bodies corporate are reluctant to alter pet by-laws even if they know they will be deemed invalid, says the former head of the BCCM Chris Irons.

Former commissioner for Body Corporate and Community Management Chris Irons says bodies corporates do not like backing down on pet by-laws even if they will be deemed invalid. Picture: John Gass

“Committees do not want to back down on by-laws and if they are forced to change them because of a ruling, they do not look like they have backed down and a government authority is painted as the bad guy,” Mr Irons said.

Unfortunately, it’s left to a tenant or an owner to challenge a by-law and that can be daunting and time-consuming, says Unit Owners Association of Queensland executive Ross Anderson.

Unit Owners Association of Queensland executive Ross Anderson said bodies corporate were playing a game of bluff with tenants over pet by-laws. Picture: Supplied

There was also no deterrent for bodies corporates who act unreasonably or stonewall a tenant’s application until it reaches the BCCM, he said.

“It is a game of bluff and these are emotional issues and they deliberately make the conditions so onerous many residents do not even bother having a pet,” Mr Anderson said.

“The onus is on the owner or tenant to show the rules are invalid and that’s a flaw in the system and there are no sanctions against a bodies corporate for unreasonable conduct.”

Mr Walsh was contacted for comment.

Originally published as A body corporate’s pet by-law is invalid, with experts saying committees are playing a game of bluff with tenants