A Property24 reader asks: I would like to know what steps a body corporate may take against me for keeping a cat. The cat is always indoors and never leaves the house. It is extremely quiet and sleeps most of the day. The rules, however, state that we may not have pets. Please can you advise what I should do? My daughter is madly in love with the cat and we simply can’t just “get rid of it”.
Carryn Durham, specialist sectional titles lawyer at Paddocks, advises:
The Prescribed Conduct Rule 1 in Annexure 9 of the Regulations provides that 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. When granting such approval, the trustees may prescribe any reasonable condition. The trustees may withdraw such approval in the event of any breach of any condition prescribed.
This rule can be changed by the developer on the opening of the sectional title register, and thereafter by special resolution of the body corporate. In your scheme the rules have been changed to provide that no pets are allowed in the scheme. In order to change this rule you would need the body corporate to change it by special resolution. Therefore, if you were to get enough support from other members of the body corporate you could have the rule changed that pets are allowed with the consent of the trustees, which cannot be unreasonably withheld.
A case that dealt with trustees’ unreasonably withholding consent was Body Corporate of the Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D) where 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 terms of section 35(3) of the Sectional Titles Act 95 of 1986 (the “Act”) any management or conduct rule made by a developer or a body corporate shall be reasonable, and shall apply equally to all owners of units put to substantially the same purpose. Usually the restriction on the keeping of pets is designed to avoid and, if necessary, deal with nuisance to other residents in the scheme. Therefore the issue of nuisance is central to the enquiry. The court will ask whether it is likely that the keeping of this pet will unreasonably interfere with the rights of other occupiers to use and enjoy their units. The question of reasonableness will turn on the nature of the cat and the type of scheme. It could be argued that a rule that provides an absolute prohibition on the keeping of any pets in any circumstances is probably unreasonable. However, a prohibition of certain types of pets or a limitation on the numbers of pets is likely to be reasonable if supported by the surrounding circumstances. In your case you could show that your cat stays inside your unit, is quiet and sleeps most of the day. You could go to the High Court for an order that the rule is unreasonable.
Where the trustees have decided that you must remove your cat from the scheme and have reasonably, after following due process, notified you of their decision with reasons then you are not entitled to continue keeping your cat in the scheme. The trustees will have to give you reasonable opportunity to remove the pet. 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. This can only be achieved by an order of court.