In a sectional title scheme, along with parking and people, one of the most contentious issues that arise relates to the ownership of pets.
And so, when considering an application by an owner or occupier of a sectional title to keep pets, a trustee needs to exercise caution.
The prescribed conduct rule 1 (PCR) in Annexure 9 of the Sectional Titles Regulations deals with the keeping of pets.
An owner or occupier of a section is not allowed to keep any animal, reptile or bird in a section or on the common property, without the written consent of the trustees, and whose approval may not be unreasonably withheld. An absolute prohibition to keep a pet could be considered unreasonable.
When granting approval, the trustees may set a reasonable condition. This approval can then be withdrawn in the event of any breach of the prescribed condition in line with sub-rule (2).
The purpose of this rule is to prevent a person from causing an annoyance or inconvenience to other residents.
When considering whether or not to grant consent, it is advisable to think about the following questions:
The trustees should carefully consider any application for permission, and should discuss and consider the issue at a trustee meeting. They are obliged to individually consider each request for permission to keep a pet. Their decision must based 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 illustrating that they have applied their minds to the particular application.
If consent is unreasonably withheld the owner can go to court.
In Body Corporate of The Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D) 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.
They are not entitled to refuse an application on the basis of being afraid of creating a precedent. The trustees involved in this case were found to have been grossly unreasonable and showed that they had failed to apply their minds by refusing a lady permission to keep a small dog.
The trustees decision to refuse to grant permission and to set conditions, ultimately depends on the nature of the pet concerned and the circumstances of the scheme.
When 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.
Unless there is a clear nuisance caused by the animal, it would be unreasonable of the trustees to remove a “companion animal” or “service animal”, such as a seeing-eye dog owned by a blind or partially sighted occupier.
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 grant permission.
The trustees must give, in writing, any permission to an owner or occupier, and it must be signed by two trustees in compliance with the prescribed management rule 27. This should include a description of each pet and set out any conditions imposed.
The consent should be based on the pet owner agreeing in writing to the specified conditions. The pet should not be allowed in scheme until the body corporate are in possession of the written confirmation of that agreement signed by the pet owner.
The trustees should set reasonable conditions when granting permission to keep a pet. They should look to see if the local by-laws pose any restrictions regarding the number of dogs allowed per square meter.
This could offer guidance when deciding whether it is reasonable or not to grant permission. There should be restrictions on the number and size of pets allowed, taking into consideration the particular circumstance of the owner’s garden.
A reasonable condition could include a restriction on the owner to not let his or her dogs escape onto the common property. It could be specified that the dogs would only be allowed on the common property if they are supervised and on leashes.
The application for permission should be for a specific pet. A pet register should be kept so as to avoid situations where it could be argued that permission was granted or not.
The trustees can withdraw permission if it is reasonable to do so. For example, if the conditions are not being met, if the pet is causing an annoyance to other owners or occupiers or if 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 which in turn provides them with an opportunity to remedy the situation.
They should be in a hearing where evidence is given relating to the issue raised. All the trustees decisions must be minuted.
The pet owner should then be given reasonable time to remove the pet. If the trustees have reasonably withdrawn their consent for an owner to keep a pet, then the owner concerned is not entitled to continue keeping that pet in the scheme.
However, enforcing this decision could be tricky for the trustees because the body corporate is not entitled to forcibly remove a pet from a person’s possession. The only way to successfully do this is through a court order.
For example, if there are too many dogs being kept in an inadequate space in the scheme, trustees can get the assistance from the local SPCA who can be contacted to come to the scheme to do an inspection. They will institute legal action to have the dogs removed if the case is justified.
In schemes where the rule is amended to prohibit pets, a “grandfathering clause” may be inserted to cater for existing pets, which would allow existing pets to be kept but that when they die, they may not be replaced.
Sometimes it takes a professional legal practitioner to assist trustees to make reasonable decisions. Please feel free to contact us for any assistance in dealing with the really prickly issues stemming from living within a Sectional Title Scheme.
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