Sectional title schemes, particularly densely populated ones often with little or no common property gardens, may not be the ideal places for pets. Yet many people living in sectional title schemes, or thinking about moving into one, consider their pets to be their best friends and could not even dream of getting rid of them.
Prescribed conduct rule 1 (PCR 1) provides that owners or occupiers of sections shall not keep any animal, reptile or bird in a section or on the common property without the written consent of the trustees, which may not be unreasonably withheld. Owners who think the trustees have unreasonably withheld their consent may apply to court for declaratory orders that the trustees’ consent has been unreasonably withheld.
This happened in the case Body Corporate of the Laguna Ridge Scheme No 152/1987 v Dorse 1999 2 SA 512 (D) which dealt with the interpretation and application of PCR 1. A woman was refused permission to keep her dog in her flat and she challenged the trustees’ refusal by taking them to court. The court held that each request for permission to keep an animal had to be considered on its own merits and the decision of the trustees had to be based on the facts and circumstances relevant to the particular case. The restriction on the keeping of animals was designed to avoid the causing of a nuisance to the other occupants in the building and the fact that permission was refused despite the fact that the woman’s dog did not bark and was never allowed to roam on the common property meant that the trustees had not adequately applied their minds to the matter. In the end the court substituted the trustees’ decision with its own and allowed the woman to keep her pet in her flat.
If the trustees decide to allow a particular owner or occupier to keep a pet, they are entitled to impose reasonable conditions attaching to the consent. Reasonable conditions could include a requirement that the owner must clean up after their pet immediately if it messes on the common property, that the pet may not cause a nuisance to other owners or occupiers, and that the pet is not to be on the common property unless it is on a lead. If any reasonable condition is breached, the trustees will then be entitled to withdraw their consent and the owner or occupier may be forced to remove the pet from the complex.
Some schemes have amended the prescribed rules and now have a rule that no pets are allowed in the scheme whatsoever. This absolute prohibition on the keeping of pets could be argued to be an unjustifiable infringement on a person’s right of ownership. Then again, if the rule was in place and filed at the Deeds Registry before the owner bought into the scheme, the legal principle caveat emptor (let the buyer beware) comes into play as the buyer is presumed to have knowledge of the rules applicable to the scheme.
If a scheme has the prescribed rules and wants to adopt a “no pets” rule as an amendment to PCR 1, this could only be done by the body corporate passing a special resolution amending PCR 1 and having this filed at the Deeds Registry. But because all rules must be reasonable, the new rule must take into consideration the vested rights of owners who already have pets at the scheme.
The ‘grandfathering’ principle is appropriate here. This means not taking rights away from those in whom they are already vested. That is, you should not make those who have pets get rid of them, but once those pets die they should not be entitled to replace them.
Jennifer Paddock is a lawyer and course convenor at Paddocks, a sectional title training firm. Visit www.sto.co.za for free sectional title advice or www.paddocks.co.za for sectional title training information.
I am an attorney and partner at SNA Attorneys, http://www.niselowlaw.co.za and have been waging a two and a half year battle with my Body Corporate over the “No pet Rule”. I purchased after the rule had been amended to a blanket prohibition on the keeping of pets. The trustees however lied to me in answer to my question as to whether there were any pets in the complex when I bought in late 2007.
I asked for consent all along which was denied on the basis that there was no provision for asking of permission in terms of the rule as amnended. It was brought to my attention that there had in fact been dogs on the premises all along though the dogs were already there prior to amendment of the rule.
If one has regard to a blanket prohibition on the keeping of any pets whatsoever, without provision for asking for consent, the element of “reasonbleness as which is required by The STA, provision for exceptional circumstances such as the need by an occupant/owner for a blind dog, and also leads to the inequitable scenario where for example where an owner or occupier may not keep pets such as an iguana, a hamste in a cage, a snake in a cage, or even a bird in a cage, as well as ”
fish in a fishtank or coy pond, none of which are capable of creating any nuisance to other occupiers or owners.
Whats even more remarkable is that the resonableness/lawfulness/constitutionality has never been tested in a court of law and there is simply no precedent as the closest case law is the DORSE matter where the rule was not a blanket prohibition but had provision for the asking of permission which the court found to have been unreasonably witheld and ruled in favour of the owner/occupier.
The lack of certainty surrounding this issue, I feel lays the foundation for unecessary friction betwen Trustees and owners/occupiers and there is presently only speculation and conjecture on the part of experts in this field. Seems Im set to be the test case.
In my case the BC represented by the self named top expert attorneys in this field charged me for failing to obtain the written permission of the Trustees ie charged me under the Rule prior to its amendment in 2004, plus lied to me as set out above about the presence of other pets in the complex, as I have been advised that even if pets had been around prior to amendment of the rule, the rule is still required to be applied “consistently” in terms of the STA, which would probably explain why they lied on record.
Below is a link to an article in Times Live yesterday about my High Court battle though it fails to deal with the legal side and fact that after having filed my answering affidavit and counterclaim I was met with utter silence by the usually vocal Body Corporate’s attorneys.
http://www.timeslive.co.za/entertainment/article789692.ece/Moggy-lover-all-set-to-take-cat-spat-to-court
Only time will tell but, the BC’S attorneys time period to file their answering affidavit to my counterclaim has long since expired and I will now be proceeding to enrol the matter for hearing notwithstanding that I am the Respondent in this matter.
Our complex has a “Only Small Dogs” policy, which we were not informed of when we purchased (we were told by the seller that we were allowed pets)
When we asked the Body Corporate why we weren’t allowed large dogs, the reply was that they bark and roam around the property.
We have a fenced off garden, and our dog is a well behaved Retriever who doesn’t bark (unlike our neighbors small Jack Russel and Cocker Spaniel.) There are also other large dogs in the complex, which were around before the no large dogs rule.
Do you think we have a leg to stand on, is there a way to reason with Body Corporate, or do we give in and sell?
We have just moved into a complex now with a reasonable sized garden. We were told by the previous owner/real estate agent that we were allowed 2 medium dogs or one larger. We have a retriever puppy who is very well trained. He does not bark and is not a nuisance to neighbours. We were told by the chairman of the body corporate that we are not allowed this dog and that we may have to get rid of it. We, personally, would rather sell the house than get rid of our dog. What rights do we have if the decision comes up against us?