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How new pet rights for tenants will impact body corporate

Pets

With pandemic pet ownership at an all-time high, residential tenancy laws in Queensland are set to change on 1 October, making it easier for rental property tenants to keep a pet.

While there has been extensive media coverage of the new legislation, little has focused on the impact to strata developments. Specifically, whether existing body corporate by-laws will overrule those in the new amendment.

What does the legislation mean for all landlords?

Under the new legislation coming into effect on October 1, 2022:

  • Landlords will be unable to apply a blanket ban on pets within their rental property
  • There will be a specific RTA form for a tenant to apply to the property owner to keep a pet
  • Landlords must consider all applications on their individual merits
  • Landlords must give the tenant an answer within 14 days. If they don’t respond, the law considers the pet has been approved
  • Applications can only be refused based on a specific list of prescribed grounds

Grounds for the landlord’s refusal of a pet application

New section 184E of the Residential Tenancies and Rooming Accommodation Act 2008 sets out that (our emphasis):

The following are the only grounds for a lessor to refuse a tenant’s request for approval to keep a stated pet at the premises—

  1. keeping the pet would exceed a reasonable number of animals being kept at the premises;
  2. the premises are unsuitable for keeping the pet because of a lack of appropriate fencing, open space or another thing necessary to humanely accommodate the pet;
  3. keeping the pet is likely to cause damage to the premises or inclusions that could not practicably be repaired for a cost that is less than the amount of the rental bond for the premises;
  4. keeping the pet would pose an unacceptable risk to the health and safety of a person, including, for example, because the pet is venomous;
  5. keeping the pet would contravene a law;
  6. keeping the pet would contravene a body corporate by-law or park rule applying to the premises;
  7. the tenant has not agreed to the reasonable conditions proposed by the lessor for approval to keep the pet;
  8. the animal stated in the request is not a pet;

Body corporate by-laws overrule a tenant’s right to keep a pet

While body corporate blanket-bans on pets are not common, most bodies corporate have some type of restriction or regulation on the type and number of pets a resident can have at the scheme. These restrictions often include:

  • A requirement to obtain committee approval for each pet
  • A requirement to register the pet with the on-site manager or caretaker
  • The number of pets
  • The type of pet
  • Conditions about how the pet can live at the site – where it can and can’t go

These body corporate by-laws will overrule any approval granted by a landlord owner if the two are conflicting.

Example 1. If a tenant applies and receives approval by the lot owner to keep a second pet and the body corporate by-laws only allow residents to keep 1 pet, the tenant will be in breach.

Example 2. If the body corporate by-laws require committee approval for residents to keep a pet and a tenant only receives approval by the landlord, the tenant is in breach and must remove the pet until body corporate approval is received.

Inconsistency in the decision timeframe

One of the most significant parts of the new tenancy legislation is that the landlord must give the tenant an answer within 14 days after receiving the application. If the landlord does not respond within 14 days, or if the landlord says no but that decision deviates from the approved list of reasons to refuse a pet, then the pet application is deemed to have been approved.

Silence from the owner = pet application is approved

We anticipate problems will arise within body corporate schemes when:

  • Investor owners who previously did not allow pets at all, may not know their body corporate’s by-laws around pets (as previously they didn’t need to)
  • If a by-law requires that pets must receive committee approval, under the body corporate legislation the committee has at least 6 weeks to consider the application, creating an unavoidable conflict between the 14-day owner approval timeframe, and the 6-week approval timeframe for the body corporate.

Under the law, an owner’s approval of a pet, or deemed approval if they do not respond within 14 days, is void if the body corporate by-laws are breached by the approval.

The challenge is, regardless of the breach, most tenants will bring the pet into the property immediately after receiving approval from the owner. The body corporate will then be left in a position where:

  • The tenant now has a pet in the building with the owner’s approval, but without body corporate’s approval
  • The body corporate must enforce the by-law breach against the tenant
  • The owner or agent must also enforce a tenancy breach against the tenant, as a by-law breach automatically creates a tenancy breach for the tenant

Scenario 1 – Good outcome

The body corporate for 500 Roger Street CTS 12345 has a typical by-law, which states that each resident must obtain committee approval before bringing a pet into the building.

A lot owner, Ms White (investor owner) is open to considering pet applications from her tenants and is aware of the body corporate by-laws.

Ms White receives an application from her tenant to get one dog. Ms White consults with her rental property manager, and approves the application subject to:

  • Needing to also obtain body corporate approval
  • Conditions about maintenance, damage and carpet cleaning

The tenant, after receiving this approval from Ms White, makes an application to the body corporate to keep one dog within the lot.

The body corporate committee considers the application and approves it, subject to:

  • Conditions about noise, nuisance, and use the dog cannot go into the swimming pool area

After the tenant has received approval from BOTH the owner and the body corporate, the tenant buys a dog and enjoys being a happy pet owner.

Scenario 2 – Bad outcome

The body corporate for 123 Smith Street CTS 12345 has a typical by-law stating each resident must obtain committee approval before bringing a pet into the building.

A lot owner, Ms Stern (investor owner) has previously not allowed pets in her rental unit due to concerns about damage to the carpet.

Under the new tenancy laws, Ms Stern receives an application from her tenant to get one dog. Ms Stern is not aware of the body corporate by-laws requiring all pets to be approved by the committee, and after discussing the application with her rental property manager, approves the application subject to conditions about damage and carpet cleaning.

The tenant, after receiving Ms Stern’s approval letter, purchases a dog costing $5,000 and brings it into the unit.

Shortly after, the body corporate committee receives complaints about a puppy barking in the lot. It notifies Ms Stern about a dog residing in her lot without approval, and that any approval she has issued to her tenant is inconsistent with an existing body corporate by-law and subsequently void.

Ms Stern’s, through her property manager, informs the tenant the pet approval is now void, and that neither the tenant nor Ms Stern had reviewed the body corporate by-laws prior to making, or approving the application.

Ms Stern instructs the tenant to:

  • remove the dog temporarily and leave it with a friend
  • apply for body corporate committee approval to keep the pet, which may take up to 6 weeks

The tenant is very unhappy about this and decides to pursue costs from Ms Stern relating to the purchase price of the dog, the cost of temporary accommodation, and early termination of the tenancy if the body corporate does not approve the pet.

What is likely to happen in the real world?

As strata management professionals there are a few things that we observe:

  • While tenancy laws and tenant’s rights are the same throughout Queensland, every set of body corporate by-laws are unique. This means the resources and advice available to tenants, rental agents and owners is almost never tailored to their individual by-laws and will be general and not specific advice.
  • Many pets are currently blocked from entering body corporate properties based on the landlord’s personal pet preferences for their unit – that restriction is about to be severely limited.
  • Media attention to this rental law change will most likely result in rental agents and body corporate committees receiving substantially more pet applications from tenants.
  • Tenants rarely obtain a copy and review the body corporate by-laws or consider their effect, before signing a lease. This step in rental property leasing will become much more important.
  • The way rental properties are marketed can be quite confusing for tenants. For example, if a unit is listed as ‘pet friendly’ this may indicate the owner is open to pets, but often won’t explain what the body corporate by-laws stipulate about pets or their approval requirements.
  • The new laws focus on enhancing tenant’s rights but this may come at the expense of the rights of the body corporate who self-regulate through the democratic process between lot owners.

As always, BCsystems will continue to work with our committees towards the best outcome for the body corporate as a whole.

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