It should come as no surprise to Home Unit owners that pet disputes are one of the most common types of dispute that we encounter as Company Title specialists.
While pet ownership in a Company Title building can be polarising, it is important to recognise that all owners want to feel safe and comfortable in their own home. Depending upon your views, animals can both contribute or detract from this sense of comfort. It is important to focus on balancing these two perspectives when developing your Company pet policies.
Most Company Title buildings choose to incorporate their pet policy in the House Rules because the Board can (usually) enforce these House Rules pursuant to their Articles of Association (or Constitution). We provide a broad overview below of the issues that should be addressed in a well-balanced pet policy. It is worth reading your current House Rules to determine whether the issues listed are addressed.
Our standard ‘Pet Policy’ documents have been developed overtime to ensure that all of the major issues below are covered-off. If you find yourself confused about the best way to move forward, we highly recommend giving us a call on (02) 9199 8597.
Many ‘pet policies’ allow Members to keep pets provided they gain Board approval. In practice, this is a rarely a clear process. Most governance documents contain vague clauses about pet ownership and fail to address a number of key issues, such as:
- What form should the Member use to seek approval and where can they find it?
- How long should the Member wait for a decision from the Board?
- Is the Member entitled to reasons for the Board’s decision?
- Can an animal be kept on the premises while the decision is pending?
Clarity around timing and decision-making is necessary to ensure that the Member feels as though their rights as a Home Unit holder are being upheld. It may also prevent the premature involvement of lawyers or angry exchanges between neighbours.
Types of animals or breeds
If you are developing a pet policy for your company title building, remember the House Rules should balance the concerns of all Member. Boards should ensure that Members are permitted to keep non-disruptive pets. To help the Board with their decision making, an effective strategy is to include an uncontroversial list of prohibited animals that by implication leaves all other animals within the scope of the Board’s discretion to decide whether they can be kept.
Types of prohibited animals may include:
- Certain breeds of animal (e.g. dogs);
- Animals exceeding a certain size or weight; or
- Animals that are ‘dangerous’ under the Companion Animals Act 1998 (NSW).
A prohibition clause does not limit the Board’s discretion to reject any animals not listed, but it does reassure Members that the approval process is not entirely arbitrary.
The Company and its Board do not want to find themselves liable for injury or damage arising from animals in the building such as:
- Injuries caused by the animal to people (or other animals) in the building;
- Damage caused to the common property of the building;
- Costs incurred to clean the common property or Home Units.
It is always a good idea to include a waiver and indemnity clause protecting the Company and its Board from liability in the House Rules, even if the types of animals kept by Members are unlikely to injure or cause any significant damage to people or property.
Binding on tenants and visitors
Something Boards often overlook is that not every animal ‘kept’ in a Home Unit will belong to the owner. It may be the case that the animal belongs to a tenant or visitor.
The House Rules themselves are ‘enforceable’ against the Company and its Members because they derive power from the Articles, however, the Articles themselves are only binding as between the Members and the Company. This may mean that tenants under a lease are not bound by the House Rules as they are not strictly ‘Members’.
We recommend seeking legal advice about the specific mechanisms you can put in place to ensure that Members’ tenants and visitors are covered by your building’s pet policy.
Boards should always be careful when refusing permission to keep a pet to Members with a disability. Usually, such Members will claim that the animal is either a ‘companion animal’ or an ‘assistance animal’ trained to help them manage their disability. It is good practice to reference the relevant discrimination legislation provisions and summarise the key items that the Board must consider when determining if the animal does fall within one of these definitions. For example, ‘assistance animals’, which are covered by the Disability Discrimination Act 1992 (Cth), must be:
- Accredited under a State or Territory law to assist a person with a disability (currently not applicable in most states); or
- Trained to alleviate the effects of a disability while also meeting certain standards of hygiene and cleanliness.
Failing to take proper precautions with respect to disability support animals may expose the Company to expensive disability discrimination claims.
How can we help?
We understand that property owners want to feel safe and comfortable in their home. JFM Law has decades of experience in implementing effective House Rules for Company Title Buildings that balance the interests of stakeholders and ensure that any potential disputes are accounted for and dealt with effectively. If you believe that your pet policy needs an update, please give us a call on (02) 9199 8597.
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