Dog lovers, get in formation.
In a landmark case, the dogfight in outlawing blanket bans on tenants’ pets has been won by Hamish the Cavoodle. This came after a Melbourne tenant was taken to the Victorian Civil and Administrative Tribunal (VCAT) by the owners corporation of an Eaglemont subdivision to remove her dog from her rented townhouse, despite having her landlord’s permission.
This all sounds complex, but in reality it doesn’t have to be. Luckily for Hamish’s owner, she knew her rights. Make sure if you are leasing you know what rules you can enforce before wasting time and money on Tribunals, and likewise for tenants before being forced to pick up and move out.
With LawPath you can connect with a strata lawyer to affirm your rights as an apartment owner and offer legal guidance regarding your strata complex.
Background – Landlords and owners corporation
State strata laws govern certain types of property, for example apartments, units and townhouses.
When you buy property that falls under this law, you have individual ownership of part of a property. This is called your ‘lot’ and the owner is called a landlord. This is generally an apartment or a townhouse.
Along with this, ‘lot’ owners also have shared ownership in the remainder of the property, which is called ‘common property’ and includes areas like foyers, driveways and gardens. These other owners are a legal entity called the ‘owners corporation’ and this name varies depending on the state. For more information on what strata law is – have a look at our guide.
What was the dispute about?
Despite the townhouse being advertised as “pet friendly”, the owners corporation had rules prohibiting pets after a previous issue with a dog in 2013. The relevant tenancy application was approved on the basis that the tenant did not have a pet, but after inheriting the cavoodle from her parents the landlord allowed her to move in.
The tenant and the landlord were served a number of breach notices, both refused to comply as they did not believe that the dog was causing a nuisance.
What happened at the Tribunal?
The owners corporation then brought proceedings to VCAT to have the dog removed and force the tenant to comply.
VCAT ruled that the owners corporation did not have the legal power to prohibit pets from private lots. The power under the law to control noise and nuisance and the behavior of persons does not give an owners corporation the power to prohibit an otherwise legal activity on the basis that it would prevent a ‘possible’ noise or nuisance. VCAT also said that there was no evidence the dog was dangerous or causing a nuisance and that the owners corporation could not remove the dog simply on the grounds that it is in breach of the rules.
The powers of owners corporations are limited to making rules only about the use of and behavior on common property, external noise and nuisance control. Only in cases where health, safety or security are concerned are they allowed to make rules about the use and enjoyment of the private premises. The powers to force Hamish out were invalid and struck down.
VCAT ordered that Hamish be restrained while on common property, but struck down the rule of no pets made by the owners corporation.
Tenants are subject to many rules that affect living arrangements. It’s important to know what rules owners corporations and landlords can and cannot impose – especially when there is an adorable cavoodle in the mix.
The bottom line is – whether you’re the owners corporation drafting and amending by-laws for a strata complex, or the landlord wanting to make renovations, or simply a confused tenant just wanting to know their rights, there is a LawPath strata lawyer for everyone.
What are your thoughts on this attempted pet ban? Should some pets be banned and others allowed? Let us know by tagging us @Lawpath or join the conversation with #LawPath