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Owner Gets to Keep Hearing Dog

Wednesday, 12th June 2013

A by-law cannot prevent an owner keeping a hearing dog on a lot or common property. But just what is a hearing dog? And when will an owner be allowed to keep one even if there is a by-law banning pets in the building?

A by-law cannot prevent an owner keeping a hearing dog on a lot or common property.  But just what is a hearing dog? And when will an owner be allowed to keep one even if there is a by-law banning pets in the building?

Introduction

Mr and Mrs Drexler live in an apartment in Pyrmont with their Jack Russell terrier named Larry.  The owners corporation of the building passed a by-law prohibiting the keeping of animals in the building.  Mr and Mrs Drexler said that the by-law did not apply to them because Larry is used as a hearing dog.  They relied on section 49(4) of the Strata Schemes Management Act 1996 which says that a by-law cannot prohibit or restrict the keeping on a lot of a dog used as a guide or hearing dog.

The Litigation

The owners corporation applied to a strata schemes adjudicator for an order that Larry be removed from the building.  The owners corporation was successful and Mr and Mrs Drexler were ordered to remove Larry from the building.  Mr and Mrs Drexler successfully appealed against the adjudicator's decision with the CTTT deciding that Larry was a hearing dog and could remain in the building.  The owners corporation appealed against the CTTT's decision to the District Court.  The owners corporation argued that Larry was not a hearing dog and therefore Mr and Mrs Drexler could not keep him in their apartment because of the by-law prohibiting pets in the building.

What is a Hearing Dog?

Section 49(4) of the Strata Schemes Management Act 1996 provides as follows:

A by-law cannot prevent keeping of guide dog

A by-law has no force or effect to the extent to which it purports to prohibit or restrict the keeping on a lot of a dog used as a guide or hearing dog by an owner or occupier of the lot or the use of a dog as a guide or hearing dog on a lot or common property.

The strata legislation does not define 'hearing dog'.  The term is defined in the Macquarie Dictionary as "a dog which is trained to aid people with a hearing disability by alerting them to such noises as the door bell or the telephone ringing, fire or burglar alarms, etc."  This definition recognises three components of a hearing dog: it is "trained", it assists person with a hearing disability, and it provides this assistance by alerting the disabled person to household noises such as doorbells, telephone and alarms.  But the definition does not describe the type or scope of training or the manner of alerting the disabled person.

In the District Court the owners corporation tried to narrow the meaning of "hearing dog" by arguing that the term had a technical meaning and applied only to dogs which had a particular period of training (6-8 months), which provided a particular level of assistance (alerting the disabled person to smoke alarms, door knocks, door bells, etc) and utilised a particular manner of alerting the disabled person (by touching the disabled person and leading them to the source of the sound, except in the case of a smoke alarm where the hearing dog would drop to the floor).  The owners corporation relied on brochures supplied by an organisation responsible for training hearing dogs known as Lions Hearing Dogs Inc.

District Court Decision

The District Court disagreed with the owners corporation's interpretation of the meaning of 'hearing dog'.  The Court said there was no reason to limit the plain meaning of a hearing dog in this way.  The Court held that the property meaning of a hearing dog in section 49(4) is a dog trained to assist a person with a hearing disability (be it partial or complete) by alerting them to some normal household sounds, such as a telephone or a doorbell.

But, the inquiry did not stop there.  Section 49(4) requires a dog be "used" as a hearing dog to qualify for the exemption provided by the section.  The District Court held that a dog is ":used as a hearing dog" if a not insignificant part of its function is to alert a person with a hearing disability to normal household sounds.  But the Court said that as a practical matter, it is necessary that a dog, to be used as a hearing dog, be trained so that it can provide the assistance that a hearing dog is trained to provide.

For these reasons (and others) the District Court concluded that Larry is a hearing dog meaning the by-law prohibiting pets did not apply to him as a result of which Mr and Mrs Drexler were entitled to keep Larry in their apartment for use as a hearing dog.

Conclusion

The decision in Drexler provides guidance for the circumstances in which an owner or occupier of an apartment will be able to keep a guide or hearing dog where the building has a by-law prohibiting the keeping of animals, or requiring the permission of the owners corporation in order to keep pets.

If a resident wants to keep a dog in his or her apartment on the basis that the dog is a hearing dog, the dog will need to be trained to assist the resident with a hearing disability by alerting them to some normal household sounds such as a telephone or a doorbell and the dog will need to be "used as a hearing dog" meaning a not significant part of its functions will include alerting the resident to normal household sounds.

No doubt similar requirements will need to be met for any resident seeking to keep a guide dog in a "no pets" building meaning, in general, to qualify as a guide dog, the dog will need to be trained to lead or guide a vision impaired person and used in this manner by the resident seeking to keep the dog.

Finally, the Drexler case provides a salutary lesson for an owners corporation seeking to enforce a "no-pets" by-law against a resident who claims to be using a dog as a hearing or guide dog.  The owners corporation engaged in an expensive and protracted battle to enforce the "no-pets" policy for the building ultimately losing and being ordered to pay Mr and Mrs Drexler's legal costs as well as having to bear its own costs through three separate proceedings.

An owners corporation seeking to enforce a "no-pets" policy must think very carefully before taking legal action when confronted with a resident claiming to be entitled to an exemption from the policy on the grounds that he or she is using a guide or hearing dog in their apartment or on common property.  An owners corporation placed in this position should ask the resident to provide information about the dog particularly in relation to its training and the types of tasks it performs to assist the resident as a hearing or guide dog to enable an assessment to be made as to whether or not the dog is, in fact, a guide or hearing dog that is being used in that manner by the resident and is therefore able to be kept in the building.

By Adrian Mueller

J.S. Mueller & Co Lawyers

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