By Dr Carryn Melissa Durham
Some of the most contentious issues that arise in sectional title schemes start with the letter “p” and include parties, people, plants, parking, pigeons, and pets! In this article, we will address how applications for permission to keep pets should be dealt with by owners and trustees in sectional title schemes.
Trustees need to take care when it comes to considering an application by an owner or occupier to keep pets. The trustees must first consider whether the applicable scheme has adopted its own pet rule by special resolution of the body corporate, or whether they adhere to the Prescribed Conduct Rules (“PCR”) in Annexure 1 of the Regulations to the Sectional Titles Schemes Management Act.
Where the PCRs apply to the scheme
PCR 1 deals with the keeping of pets, and states:
“1. Keeping of animals reptiles and birds
- (1) The owner or occupier of a section must not, without the trustees’ written consent, which must not be unreasonably withheld, keep an animal, reptile or bird in a section or on the common property.
(2) An owner or occupier suffering from a disability and who reasonably requires a guide, hearing or assistance dog must be considered to have the trustees’ consent to keep that animal in a section and to accompany it on the common property.
(3) The trustees may provide for any reasonable condition in regard to the keeping of an animal, reptile or bird in a section or on the common property.
(4) The trustees may withdraw any consent if the owner or occupier of a section breaches any condition imposed in terms of sub-rule (3).”
The purpose of such a rule is to avoid nuisance caused to other residents. The question trustees should ask when considering the application is:
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?
Owners or occupiers can only keep pets (animals, reptiles or birds) in a section or on any part of the common property with the written consent of the trustees. The trustees cannot unreasonably withhold that permission, and an absolute prohibition to keep a pet could be considered unreasonable.
The question of the reasonableness of the actions of the trustees, in the withholding of permission and setting conditions, will depend on:
- the nature of the animal, reptile or bird concerned; and
- the circumstances of the scheme.
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 that they are afraid of creating a precedent. The trustees were, in this case, found to have been grossly unreasonable and held to have failed to apply their minds when they refused a lady permission to keep a small dog.
In dealing with any application for permission to keep a pet, the trustees should take into account the likelihood of other occupants being inconvenienced and whether there are already other similar pets in the scheme. The fact that people sometimes form extremely strong emotional ties with animals and birds could also be an important and special consideration when the trustees decide whether or not to give permission.
It is also important to note that an owner who reasonably requires a guide, hearing, or service dog must automatically be considered to have the trustees’ consent to keep that animal in a section and to accompany it on the common property.
The trustees should carefully consider any application for permission and should discuss and consider the issue at a trustee meeting. 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. The resolution should also set out the full text of any conditions imposed.
The trustees must then give any permission to an owner or occupier in writingand must be signed by two trustees in terms of prescribed management rule 10(1). The text should include a description of each pet, and set out any conditions imposed. The trustees should prescribe reasonable conditions on the permission to keep an animal, reptile or bird.
In the application to keep a dog, for example, the trustees should look to see if the local by-laws contain any restrictions as to 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 the dogs allowed, taking into consideration the particular circumstance of the owner’s garden. The owner should not be allowed to let his or her dogs escape onto the common property. Furthermore, it could be stated that the dogs are only allowed on the common property if they are supervised and on leashes.
The permission should be given for a specific pet. A pet register should be kept so to avoid situations where it is disputed that permission was granted or not. The pet register should contain information on the identity of the pet, including its name, gender, age, and size.
Where the trustees withhold their consent unreasonably
In circumstances where the trustees unreasonably withhold their consent, an owner can declare a dispute against the trustees at the Community Schemes Ombud Service in terms of section 39(4)(e), which states:
“An application made in terms of section 38 must include one or more of the following orders: In respect of meetings an order declaring that a particular resolution passed at a meeting is void on the ground that it unreasonably interferes with the rights of an individual owner or occupier or the rights of a group of owners or occupiers.”
Where the scheme has adopted its own pet rule
Some schemes choose to adopt their own pet rule. It is not unusual for the conduct rule to be amended to:
- narrow the range of pets that the trustees can allow being brought to and kept in the scheme;
- to restrict the owners to only one or two pets;
- to require identification of individual pets;
- to require that the pets be sterilized; and
- to include more specific conditions that apply automatically whenever consent is given.
In those schemes where the rule is amended to prohibit pets, a “grandfathering clause” should be inserted to cater for existing pets, providing that existing pets may be kept but that when they die, they may not be replaced.
In terms of section 10(3) of the STSM Act, the conduct rules must be reasonableand must be applied equally to all owners of units. This means that, for example, two applications from different owners for dogs of similar or equal size or breed must be treated the same.
Where the pet rule is unreasonable
In circumstances where the pet rule may be considered to be unreasonable, an owner can declare a dispute against the trustees at the Community Schemes Ombud Service in terms of section 39(3)(d), which states:
“An application made in terms of section 38 must include one or more of the following orders: In respect of scheme governance issues, an order declaring that a scheme governance provision, having regard to the interests of all owners and occupiers in the community scheme, is unreasonable, and requiring the association to approve and record a new scheme governance provision-
(i) to remove the provision;
(ii) if appropriate, to restore an earlier provision;
(iii) to amend the provision; or
(iv) to substitute a new provision.”
If you require assistance with drafting a legal letter to obtain written consent for keeping a pet in your scheme; or need assistance in drafting the trustee written consent with appropriate conditions, or a pet rule then please contact me at consulting@.