Can a body corporate be allergic to pets?
Monday April 16th, 2018
Dander – it’s not a word most of us come across very often, other than back in primary school and Robert Louis Stevenson books. It probably goes hand in hand with ‘pluck’.
However, dander has a very serious meaning to some of our readers, particularly when it comes to keeping pets in community titles schemes. Wikipedia defines dander here.
For those with serious allergies, animal dander can be a genuine threat to their health and wellbeing.
We have written about the keeping of pets for years. Click here to see some of our previous articles on this issue.
The genesis of this dispute was no different to most. An owner made an application to keep a pet pursuant to a by-law that allowed pets with committee approval. The committee never really responded other than to say that ‘the building was not suitable for animals’.
This was a ‘no’ to the application.
The owner made an application to the Commissioner’s Office seeking an order that they be allowed to keep their pet.
The adjudicator stated the correct legal position, along the lines of:
- When faced with a pet application a body corporate must exercise the discretion given to it in the by-law by considering each request on its merits and in the particular circumstances.
- A permissive by-law (like the one here) does not require all requests to be approved. A body corporate may retain a preference against pets. However, it cannot automatically refuse all requests, or refuse them without rational justification, or rely on irrelevant considerations.
What was then held to matter includes:
- The magnitude and frequency of the risk that the dog could adversely impact on common property or on the rights of other occupiers to the use and enjoyment of their lots and common property; and
- Whether the objections could be ameliorated through the imposition of conditions.
It is up to the applicant (being the person seeking the approval) to set these things out – and to suggest conditions that may be necessary in the circumstances.
The circumstances here are somewhat unique.
This building had a resident manager. That resident manager had a heart condition and asthma. Evidence was put forward that the asthma could potentially be exacerbated by the animal dander. Given that the resident manager’s role extended to all parts of the common property, he would inevitably come into contact with animal dander.
It was acknowledged that animal dander could be brought into the scheme via occupiers coming into contact with animals outside the scheme, and also that the severity of the reaction of the resident manager to dander was not detailed.
The adjudicator supported the committee’s refusal to allow the pet on this basis, even though the basis for the committee’s original decision did not reference the dander.
The adjudicator did not shut the door completely though. It was stated that:
There may be potential for conditions to be developed which could ameliorate the transmission of airborne allergens and so minimise the risk of any adverse impact.
This is clearly an invitation to the owner to set out some conditions that may overcome the risks.
The adjudicator then kicked into touch a range of other arguments that always get put forward in these styles of dispute:
|I bought in here because of the no pet policy.||There is no such lawful thing. Pets cannot be refused outright.|
|This is a holiday letting building and animals shouldn’t be allowed here.||This is not a rational basis to refuse a pet.|
|This sets a precedent for all other animals.||Each matter must be considered on its merits.|
|The dog might bark.||Permission can be withdrawn if it does, but you cannot refuse consent based on what might happen.|
|Hygiene concerns.||These can be dealt with by appropriate conditions|
|The dog is a trip hazard.||So are lots of other things.|
|The dog is not suited to apartment living.||There was no evidence to support this.|
It will be interesting to see if the owner has another crack at the application and suggests more conditions that minimise the risk of dander.
The refusal is probably more supported by the closed nature of highrise living – we think it would be harder to support in a townhouse style development.
It hinged on the health and wellbeing of one occupant. If that occupant moved on, there would not seemingly be a basis for refusal.
The raising of allergies does not automatically mean a pet can be refused. It does show though that adjudicators do retain substantial flexibility to make decisions that are not necessarily consistent with previous ones. The joy of not being bound by precedent!
The decision is here.
This article was contributed by Frank Higginson, Hynes Legal.