ONSITE MANAGERS SEMINAR MARCH 2011

ADJUDICATOR’S ORDERS

ADJUDICATOR’S ORDERS

• KEEPING ANIMALS

• FOR SALE SIGNS

• VISITOR PARKING

• BACKYARDS

• TRIMMING / REMOVAL OF TREES

• SMOKING

KEEPING ANIMALS

KEEPING ANIMALS

• Firstly, where an owner has had a animal for some time and the body corporate decide that the owner must remove the animal as approval was never sought, the application will be dismissed on the grounds that the body corporate has failed to act on the matter for some time causing the owner to assume implicit approval for keeping the animal.

The basis for this exception is that it would be harsh and inequitable for a owner to remove their animal which they have been allowed to keep over a period of time.

• Secondly, that the body corporate is acting in a discriminatory manner in seeking to remove the animal.

KEEPING ANIMALS

• Discrimination in this context can take various forms, the clearest example is where the committee refuses the request of one owner to keep an animal but grants approval to another, and there is no logical or reasonable basis for the outcome to differ as both requests were of a similar nature.

• Another example is where the body corporate seeks an order against one owner keeping an animal when there are already other owners who are keeping animals on the scheme, again with no logical or reasonable basis for the different treatment.

• The basis for this exception is obviously that bodies corporate must treat all owners equally.

KEEPING ANIMALS • The following by-law is deemed as permissive, meaning animals

are allowed, just not without written consent. Again, consent cannot be unreasonably denied;

“A by-law that says that an occupier of a lot must not without the Body Corporate’s written approval: (a) bring or keep an animal on the lot or the common property”

• Committee are obliged to consider the circumstances of each case and be reasonable in the decision it makes

• Request information relating to breed, temperament, size, exercise needs. Take into account the size of the courtyard, yard or apartment

IMPOSING SIZE RESTRICTIONS IN BY-LAWS IS NOT RECOMMENDED AS IS NOT REASONABLE IN ALL

CIRCUMSTANCES

KEEPING ANIMALS

KEEPING ANIMALS

NO PET BY-LAWS

• A "no pets" by-law is not objectively reasonable in any circumstance and by completely restricting an owner from having a pet, even one as simple as a goldfish is oppressive

• An adjudicator will overturn these and request the Body Corporate to lodge a new Community Management Statement to change their by-laws

KEEPING ANIMALS

APPROVAL CONDITIONS

– restrictions on the animal entering and using the common property

– cleaning up any mess made by the animal on the lot or common property

– in the event the animal causes or has caused any unreasonable disturbance to other owners or occupiers have valid complaints the consent to keep the animal may be revoked

– upon the death of the animal, it is not to be replaced without obtaining approval by the Committee of the body corporate

FOR SALE SIGNS

FOR SALE SIGNS The following extract from an order relates to signs placed on

scheme land where a by-law exists restricting them.

Firstly, where an owner wishes to place a sign on their lot, for example in

their

window or on an outside wall, then By-law 8 (in this particular case) requires

that the owner must first obtain the written consent of the committee...

Secondly, where an owner wishes to place a sign on common property then

(Section 152, Body Corporate’s duties about Common Property etc), which

give the body corporate the administration, management and control of the

common property requires the owner to first seek the permission of the

committee.

The committee must of course act reasonably and without discrimination in

deciding such applications by owners. It can, if it so wishes, have the body

corporate in general meeting consider a proposal that owners may place a

sign on that area of common property outside of their lot.

FOR SALE SIGNS

Thirdly, where an owner (or the owner's agent) wants to place a sign on

land outside of the scheme, for example the footpath, then that is a

matter between the owner/agent and the Brisbane City Council.

The authority of the body corporate only extends to its boundaries

except for any body corporate assets it may own outside of the scheme.

If the body corporate has an objection to signs being placed on the

footpath outside the scheme, then it should take the matter up with the

Council.

VISITOR PARKING

VISITOR PARKING The following extract is from an order that relates to visitor's car spaces. While it may be true that the visitor car spaces may be vacant

much, or most, of the time, these are designated visitor spaces required by the local government, to be used for visitor's parking.

These spaces are a universal local government requirement for the registration of a community titles scheme, and remain a continuing requirement of the scheme. Even if the body corporate wanted to use these spaces for resident parking, or some other purpose, it is not able to do so.

There is no question of the respondent, or any person other than

a genuine visitor, being allowed to park in the designated visitor car spaces.

VISITOR PARKING

• It is not reasonable for an owner to expect the use of a visitor car park, the adjudicator supports the Committee in breaching owners who do so

• However it is reasonable that an owner use a visitor car park for a small period (30 minutes) to load or unload items from their car

BACKYARDS

BACKYARDS • Section 168 Obligations of owners & Occupiers (Accom. Module)

states that an occupier of a lot included in a community titles scheme must keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition

• If owners fail to keep their yard in a clean and tidy condition, we would follow the dispute resolution process in accordance with the Act.

Then if an Adjudicators Order is given and the owner fails to comply, action can be taken in the Magistrates Court to enforce the order

UNTIDY

BACKYARD

TREE TRIMMING & TREE REMOVAL

TREE TRIMMING/ REMOVAL

• It is reasonable to request an owner to maintain the tree if branches are overhanging into a neighbouring property or touching a building It is not just and equitable in all circumstances to request that a tree in a lot owners yard be substantially lopped down to the height of the gutters, without a justified reason.

• If a tree is to be removed or substantially lopped the Committee would need to engage an appropriately qualified expert such as an arborist.

Professional advice could then establish whether there is a real risk and whether removal or significant lopping of the tree is justified.

TREE TRIMMING/ REMOVAL

TREE TRIMMING/ REMOVAL

SMOKING

In this order, An owner has lodged an application against another

owner who is a few doors up and smokes regularly on their personal

balcony.

The owner alleges he is allergic or sensitive to cigarette smoke and

provided a medical certificate and the owner states that the cigarette

smoke is interfering with the peaceful enjoyment of his property and

is causing a nuisance.

SMOKING

SMOKING

Extract from an appeal from an Adjudicators Order –

“The adjudicator, in his reasons, reviewed previous

applications under Section 167 (Nuisances) involving

cigarette smoke and observed that in each case the complaint

had been dismissed on the basis that restricting a lot owner

from performing a legal act in the confines of their own

property would, in fact, unreasonably interfere with their use

and enjoyment of that lot.”

SMOKING

So unfortunately, whilst smoking may be annoying and disruptive at times to a non-smoking owner/occupier, no formal action can be taken.