Can Trustees Ban Your Pet in a Sectional Title Scheme?
Problems around the ownership of pets are common among owners of sectional title properties, but while laws may be imposed by homeowners' associations, the requirement for a reasonable approach is entrenched in the very laws which govern how a sectional title scheme should be managed.
This is according to Mike Greeff, CEO of Greeff Christie’sInternational Real Estate, who says the Prescribed Conduct Rule 1 (PCR) in Annexure 9 of the Sectional Titles Regulations deals with the keeping of pets, be they animals, reptiles or birds.
“1. (1) An owner or occupier of a section shall not, without the consent in writing of the trustees, which approval may not unreasonably be withheld, keep any animal, reptile or bird in a section or on the common property.
(2) When granting such approval, the trustees may prescribe any reasonable condition.”
Greeff says the use of the phrases “may not unreasonably” and “may prescribe any reasonable”, clearly seek to assist in the creation of harmony among a community living side by side in a sectional title development.
“They exist to protect the pet owner from unreasonably draconian rules, and equally, they must confer on the other owners the right to a nuisance-free and peaceful environment,” he says.
“This means that both parties need to consider each other’s needs.”
In this regard, Carryn Melissa Durham of Paddocks, sectional title specialists, says the purpose of such a rule is to avoid nuisance caused to other residents.
Durham says this consideration, in granting or refusing consent, will be central to inquiry: will it unreasonably interfere with other’s rights to use and enjoy their units, and what conditions would be appropriate in these circumstances to ensure that the risk of nuisance is reduced to a reasonable level?
“Therefore owners or occupiers can only keep pets in a section or on any part of the common property with the written consent of the trustees,” she says.
“However, the trustees cannot unreasonably withhold that permission. An absolute prohibition to keep a pet could be considered unreasonable.”
Greeff says if consent to keep a pet is unreasonably withheld, the owner can take the matter to court.
“There is legal precedent which suggests that trustees are obliged to consider each request for permission to keep a pet, individually,” he says.
Durham says trustees must base their decision on the facts and circumstances of the particular case.
“The resolution to either grant or refuse consent should be recorded in the minutes of their meeting, giving reasons that illustrate that they have applied their minds to the particular application,” says Durham.
An example of a court ruling which arose from a dispute surrounding permission to keep a pet in a sectional title development was Body Corporate of The Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D), in which it was held that the trustees are obliged to individually consider each request for permission to keep a pet, and to base their decision on the facts and circumstances of the particular case.
Durham says they are not entitled to refuse an application on the basis that they are afraid of creating a precedent. The trustees were, in this case, found have been grossly unreasonable and held to have failed to apply their minds when they refused a lady permission to keep a small dog.
“The question of the reasonableness of the actions of the trustees, in the withholding of permission and setting conditions, will turn on the nature of the pet concerned and the circumstances of the scheme. In dealing with any application for permission to keep a pet, the trustees should consider what type of pet it is, and whether there are already other similar pets at the scheme,” she says.
“It is unlikely that any action by the trustees to remove a ‘companion animal’ or ‘service animal’, such as a seeing-eye dog owned by a blind or partially sighted occupier, would be held to be reasonable in the absence of a clear nuisance caused by the animal. The fact that people sometimes form extremely strong emotional ties with their pet could also be an important consideration when the trustees decide whether or not to give permission.”
The trustees are not, however, powerless in situations where the conditions of permission to keep a pet are not being met.
“They can withdraw permission if it is reasonable to do so,” says Greeff.
Examples of unmet conditions, according to Durham, include the pet causing a nuisance to other owners or occupiers (e.g. barking persistently), or the pet is considered dangerous to other owners or occupiers.
“Whether or not there was a breach must be decided based on natural justice. The owner must be given notice of the breach, an opportunity to remedy the situation, a hearing where evidence is given, and the trustees’ decision must be minuted,” says Durham.
“The pet owner must be given reasonable time to remove the pet.”
Durham says in principle, where the trustees have reasonably, after following due process, withdrawn their consent to keep a pet, the person concerned is then not entitled to continue keeping that pet in the scheme.
“However, the enforcement of this could be tricky for the trustees. The body corporate is not entitled to forcibly remove a pet from a person’s possession,” she says.
“This can only be achieved by an order of court. If, for example, there are too many dogs being kept in an inadequate space, the trustees can get the assistance from the local SPCA who can be contacted to come to the scheme to do an inspection in loco. If it is justified, they will implement legal process to have the dogs removed.”
Greeff says he agrees with Durham and firmly believes that careful consideration and application of the principles set out in these rules will lead not only to peaceful coexistence, but healthy growth in property values for the developments taking such an approach.
“A harmonious board of trustees results in a happy community, and this will ensure a good name for the development and units will become more and more sought after,” says Greeff.
Source: Paddocks, The Sectional Title and Home Owners’ Association Specialists