Keeping Pets in Condo: Your Legal Right

In view of the recent confusion on legally keeping pets in condo, we at PetFinder.my have sought lawyer Dato’ Pretam Singh‘s kind assistance in clarifying the situation, after his earlier comments on the issue. In summary: • Pet owners are legally entitled to keep pets in condo, unless the local council’s by-law expressly prohibits or restricts it • Consent of condo management is not needed, if the above holds true • If condo refuses to comply, you may file case at Strata Management Tribunal Below is the unabridged version of Dato’ Pretam Singh’s article. Document and website references are included at the Appendix section. Thank you, Dato.

Recent Amendments on Strata Management Act and its Effect on Existing Deed of Mutual Covenants

Dato’ Pretam Singh (photo by The Edge Property)
The year 2015 was a turbulent period for the property industry in Malaysia . The Strata Titles (Amendment Act) 2013, Strata Management Act 2013 was enforced on 1st Jun 2015,Strata Management (Maintenance & Management) Regulations 2015 on 2nd June and Strata Management (Strata Management Tribunal) Regulations 2015 on 1st July.
It has been a common practice that all strata parcels in the country be governed by Deed of Mutual Covenants which spelled out the does and don’t in a strata community both high rise and landed .It is indeed interesting to note that not withstanding Hue Siew Kheng JC’s strong condemnation in Woon Brothers Construction SDN BHD v. Mewahrembang SDN BHD [2009] 1 LNS 1015 that “To the extent that the provisions of the Deed of Mutual Covenants are inconsistent with the Sale and Purchase Agreement these provisions are illegal and unenforceable against the purchaser”. Yet lawyers and developers used their drafting and crafting skills to churn out pages and pages on DMC sometimes nearly 75 to 80 pages.
This however comes to an end on 2st June 2015 Section 148 of the Strata Management Act 2013 states that :
On the coming into operation of this Act, in a local authority area or part of a local authority area or in any other area, the provisions of any written law, contracts and deeds relating to the maintenance and management of buildings and common property in as far as they are contrary to the provisions of this Act shall cease to have effect within the local authority area or that to the other area.
And all contracting out from the Strata Management Act is strictly prohibited.
Section 149 states:
(1) The provisions of this Act shall have effect notwithstanding any stipulation to the contrary in any agreement, contract or arrangement entered into after the commencement of this Act.
       
(2) No agreement, contract or arrangement, whether oral or wholly or partly in writing, entered into after the commencement of this Act shall operate to annul, vary or exclude any of the provisions of this Act.
This means that from Jun 2015 DMC is no more operative in any stratified development and only By laws for regulate the control, management, administration, use and enjoyment of the building or land intended for subdivision into parcels or the subdivided building or land, and the common property and Regulation 28 of the Strata Management Regulation spells out that the by-laws having effect in relation to every subdivided building or land and common property and to bind the management corporation or the subsidiary management corporation, as the case may be, and to bind all the proprietors constituting the management corporation or the subsidiary management corporation, as the case may be, are as set out in the Third Schedule.
Thus from 2nd Jun 2015 the only surviving DMC is the Third Schedule of the Regulation thus making the Third Schedule the standard By Law for all strata parcel owners in the country.

In relation to keeping of pets, By-Law 14 states:

14. Keeping of animals   
    
(1) In a building used for residential or dwelling purposes, a proprietor shall not keep any particular animal in his parcel or on the common property thereof that may cause annoyance or nuisance to the other proprietors or which may be dangerous to the safety or health of the other proprietors or which contravenes any written law or rules and regulations of the relevant State or the local authority. 
   
(2) A proprietor, who is in breach of sub-paragraph 14(1) of these by-laws, shall within three days upon the receipt of a written notice from the management corporation remove the particular animal from the building. If he fails to do so, the management corporation may take whatever action deemed necessary to remove the particular animal from the building and -  
    
(a) all cost incurred shall be charged to and imposed on the proprietor, and
   
(b) the management corporation shall not be liable for any damage reasonably caused to the property of the proprietor in the process of removing such animal. 
It is therefore clear that this By-law does not prohibit the keeping of any animal (pets) in a stratified parcel but only those that may cause annoyance or nuisance.
The words “nuisance” and “annoyance” are often used together, but they have different meanings. The classic definition of nuisance was given in a nineteenth century case as “an inconvenience materially interfering with the ordinary physical comfort of human existence”. So, for example, an activity which causes excessive noise or dust or smoke might constitute a nuisance.
“Annoyance” has no technical legal meaning but it is clear that it is wider than “nuisance”. The leading case on the point, Tod-Heatley v Benham (1888) 40 CH D 80 concerned the use of a building as a hospital for patients with contagious diseases. Medical evidence was given that there was no significant risk of infection from the hospital and the court held that the use was an annoyance although not a nuisance.
Annoyance was defined as anything which “really does bring an objection to the mind of a reasonable being” or “reasonably troubles the mind and pleasure, not of a fanciful person, or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of a house”. There need not be any “physical detriment to comfort”.

Issue: Can the Management Corporation make additional by-laws prohibiting the keeping of pets in the stratified parcels?

Section 70(2) of the Strata Management Act 2013 allows a management corporation, by special resolution, make additional by-laws or make amendments to such additional by-laws, not inconsistent with the by-laws in the Third Schedule, for regulating the control, management, administration, use and enjoyment of the subdivided building or land and the common property, including all or any of the following matters including matters relating to the keeping of pets.
These additional by-laws shall bind the management corporation and the proprietors, and any charge, lessee, tenant etc as if the additional by-laws—
  1. had been signed or sealed by the management corporation, and each proprietor and each such chargee, lessee, tenant or occupier, respectively; and
  2. contained mutual covenants to observe, comply and perform all the provisions of these additional by-laws.
The management corporation shall—
  1. keep a record of the additional by-laws in force from time to time;
  2. on receipt of an application in writing made by a proprietor or by a person duly authorized to apply on behalf of a proprietor for a copy of the additional by-laws in force, supply to such proprietor or person duly authorized, at a reasonable cost, a copy of the additional by-laws; and
  3. on the application of any person who satisfies the management corporation that he has a proper interest in so applying, make such additional by-laws available for inspection.
A copy of any additional by-laws made by the management corporation and any amendment of any additional by-laws for the time being in force, certified as a true copy under the seal of the management corporation, shall be filed by the management corporation with the commissioner within thirty days of the passing of the special resolution by the management corporation approving the additional by-laws.
The MC or any Proprietor shall be entitled to apply to the Tribunal or a court of competent jurisdiction— (a) for an order to enforce the performance of, or restrain the breach of, any by-laws by; or (b) to recover damages for any loss or injury to any persons or properties arising out of the breach of any by-law from any persons bound to comply with these additional By Laws.
It is apparent that the Management Corporation may in an AGM adopt Additional By laws in relation to Pets but cannot be inconsistent with Third Schedule By Laws (Standard By Law).The Third Schedule By Laws (Standard By Law) allows the keeping of pets and therefore any prohibition of pets thereof would be an inconsistency.
This reasoning would consistent even where the pet is a dog. The Licensing of Dogs and Kennel Establishment (FT of Kuala Lumpur) By Laws 2011 allow one small dog to be kept, harboured or maintained in a flat (By Law 8A).
SCHEDULE II (By-law 2) defines small dogs to mean: Miniature Pinscher, Bichon Frise, Pekingese, Papillon, Poodle (Toy), Japanese Chin, Maltese, Pomeranian, Chihuahua.
Any Proprietor aggrieved by the this Additional By Law that prohibits the keeping of Pets may be advised to challenge to revoke the additional By law in the Strata Management Tribunal set up under the Ministry of Urban Wellbeing, Housing and Local Government.

9 Nov 2016 Dato Pretam Singh Darshan Singh Pretam Singh, Nor & Co Kuala Lumpur

APPENDIX: Legal References


Source: petfinder.my

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