This article, written by our Queensland Partner Michael Kleinschmidt first appeared in the QLD LookUpStrata Newsletter.
Question
Question:
A “dot point” clause in our body corporate by-laws forces lot owners to de-sex all pets living in our eco-village. The eco-village is not high-density accommodation. Is this by-law enforceable?
Answer
Answer:
Care should be taken when drafting a pet by-law or seeking to enforce one that requires the de-sexing of pets.
In 2020, Adjudicator Sutherland had to decide whether a by-law that required all cats and dogs to be de-sexed before being permitted to stay within a community titles scheme was valid or not. The by-law was worded such that the committee could not give approval for the pet if it was a dog or cat and was not de-sexed.
The learned Adjudicator found that the by-law granted the committee discretion on whether to approve a pet or not but locked down the committee’s discretion about giving approval too far. The restriction on the committee’s discretion meant that the by-law, as it was drafted, was not reasonably proportionate and was contrary to the interests of lot owners and occupiers.
As for the requirement to de-sex cats and dogs, Adjudicator Sutherland referred to material published by the RSPCA on the benefits and considerations of de-sexing, including the earliest that the procedure could or should be carried out. The by-law was not flexible enough to enable the committee to make necessary exceptions for puppies or kittens that were too young to be de-sexed (generally), or for animals of valuable breed (specifically).
It’s important to note that the learned Adjudicator was considering a by-law under the Building Units and Group Titles Act 1980 and was, therefore, sitting as a Referee. While there are similar principles in the Body Corporate and Community Management Act 1997 (BCCM Act), the Adjudicator’s reasoning does not perfectly translate. Accordingly, care should be taken when drafting a pet by-law or seeking to enforce one that requires the de-sexing of pets. See Marina Residences [2020] QBCCMCmr 648
When the new section 169B of the BCCM Act commences sometime this year, the position above will change. The new tests will include whether a requirement to de-sex is a reasonable and appropriate condition and whether the refusal to approve on the basis that an animal is not de-sexed is defensible under one of 8 specific defences; see section 169B(6) here Body Corporate and Community Management and Other Legislation Amendment Act 2023 – Queensland Legislation – Queensland Government.
If regulation of pets in your scheme is an issue, it’s important to take advice early about how the 2023 amending Act affects current pet by-laws.
