By Jennifer Paddock
Pets, parking and difficult people are possibly the three most contentious issues in sectional title living. In this article we will look into each issue, the laws governing them and some potential solutions to problems that arise from these issues.
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 considering moving into one, consider their pets to be their best friends and could not even dream of getting rid of them. And so the problem of pets in sectional title begins…
Prescribed conduct rule 1 (PCR 1) provides that an owner or occupier of a section 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. If an owner feels that the trustees have unreasonably withheld their consent s/he may apply to court for a declaratory order 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 lady 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 lady’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 lady to keep her pet in her flat.
“Animal restrictions were designed to avoid
the causing of a nuisance to the other occupants…”
If the trustees decide to give their consent to a particular owner/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 when it messes on the common property, that the pet may not cause a nuisance to other owners/occupiers and/or that the pet is not to be on the common property unless it is on a lead. Should any reasonable condition be breached, the trustees will then be entitled to withdraw their consent and the owner/occupier may be forced to remove the pet from the scheme.
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.
“…prohibition on the keeping of pets could be argues to be an unjustifiable infringement on a person’s right of ownership…”
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 of a special resolution 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 current owners who 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 ie. you should not make those who currently have pets get rid of them, but once those pets die they should not be entitled to replace them.
Considering the densification of South African cities and the increasing percentage of people with cars, it is no wonder that owners and occupiers of sections in sectional titles schemes often struggle with a lack of parking space.
“More usually, parking bays are common property”
Owners often buy a unit in the scheme ‘with’ a parking bay. However, this does not automatically mean that the buyer owns the parking bay. A parking bay can only be owned exclusively by an owner if it is marked as a section on the scheme’s sectional plan, which is fairly uncommon. More usually, parking bays are common property (owned by all owners of sections in undivided shares) but are either subject to lease agreements in favour of particular owners or subject to exclusive use rights conferred on particular owners. A parking bay can be subject to either one of two types of exclusive use rights. Firstly and more formally, the parking bay can be depicted as an exclusive use area on the scheme’s sectional plan and the exclusive use right is then ceded to a particular owner by a notarial deed of cession. Secondly and more informally, the parking bay can be made subject to exclusive use rights in favour of the owner of a particular section from time to time in terms of the rules of the scheme (either a management rule by unanimous resolution or a conduct rule by special resolution).
If the parking bays in a scheme are unregulated common property, as is not unusual, then in theory all owners have the right to use them all, although certain owners may claim that they have rights to a particular bay or bays because they have ‘always used them’. The owners will normally wish to formalize the use agreements regarding the legally unregulated bays. They can do this by agreeing to make the parking bays subject to exclusive use rights and then allocating and/or auctioning off the rights to exclusive use of the bays to the highest bidders. This is also a way for the scheme to inject income into its reserve fund and may save a scheme from having to raise a special levy for unforeseen maintenance and repairs.
“The trustees could propose a
non-luxurious improvement to the
common property by converting common property garden area into a tarred or
paved parking area.”
If a scheme needs more parking bays what can it do? If the scheme is situated next door to an empty plot, the body corporate could buy the land next door and create exclusive use bays or lease out bays on the newly acquired land. However, this would be an expensive option and there are not many schemes that happen to have an affordable empty plot next door to them. The trustees could propose a non-luxurious improvement to the common property by converting a common property garden area into a tarred or paved parking area. However, this too could be pricey and if any owner requests a special general meeting after being informed of this proposal by the trustees, a special resolution of the body corporate would have to be passed before the trustees would be authorized to effect the improvement with body corporate funds.
You can choose your friends, but you can’t choose your family and you certainly can’t choose your neighbours in a sectional title scheme. Sectional title schemes involve community living. Friendships can be made, but more often personalities clash. Living in close proximity to neighbours means that sectional title owners and occupiers need to be more considerate of other people than they would in a free standing house located further away from its neighbours. Unfortunately this is not always the case. Throw together different age groups, different cultures, different religions and different lifestyle ideals under one roof and see what happens – it is often not pretty.
“You can choose your friends, but you can’t choose your family and you certainly can’t choose your neighbours…”
Some schemes have made rules regarding the ritual slaughtering of animals on the common property. There are owners and occupiers who consider the very concept of ritual slaughter offensive, whilst others believe that the offended owners are over-sensitive and should respect their cultural rights to perform the ritual despite the liklihood of blood being spilt on the common property. In another scheme a seemingly harmless prayer ritual takes place daily on a balcony and involves the lighting of incense. To some neighbours the smell of incense is soothing, but to the asthmatic upstairs the exotic scent of incense is suffocating. Then there are the schemes where couples play ball with their young children on the common property. The shrieks of joy and the laughter are all healthy fun and games, but not for the 85 year old couple trying to take their afternoon nap. And so the list goes on.
The conduct of owners in every scheme is regulated by the Sectional Titles Act 95 of 1986, (the Act), and either the prescribed rules or other rules made in terms of the Act and applicable to the scheme. Each scheme is able to make conduct rules that regulate the behavior of its owners and occupiers by special resolution provided these rules are reasonable and apply equally to all owners of units put to substantially the same purpose.
If an owner/occupier is in breach of a conduct rule, what can the trustees do to enforce the rules of the scheme? The prescribed rules contain a fairly ‘toothless’ sanction applicable only to an owner in breach of the scheme’s rules – s/he will not be able to vote for general resolutions at any general meetings. However, the sanction does not prevent the owner from voting for or against any special or unanimous resolutions and if the owner’s bondholder has made its interest known, it can vote for the general resolutions that the owner is not able to vote for. What about fining the owner or occupier who is in breach of the rules? The Act and prescribed rules do not make provision for fining owners at all. Many schemes do make rules that apparently entitle the trustees to fine owners in breach of the rules, but whether these rules are enforceable or not will depend on the particular wording of each rule. For a fining rule to be enforceable, it must be reasonable. For a fining rule to be reasonable it must take account of the principles of natural justice, particularly the principle of audi alteram partem which means ‘let both sides be heard’.
For a fining rule to be reasonable it must take account of the principles of natural justice – let both sides be heard
In the context this means that the trustees are not entitled to fine an owner without giving him an opportunity to state his case and before considering the situation fairly and reasonably. Therefore the trustees are required first to summons the apparent transgressor to a hearing at which both sides must be given a chance to set out their side of the story, after which the trustees may decide whether a reasonable fine is justifiable in light of all the information.
If an owner and the trustees have a genuine dispute with each other, either one of them may declare a dispute with the other. If the dispute is not resolved with 14 days it must be referred to arbitration, whereupon an independent arbitrator will adjudicate the matter.
This article is published under the Creative Commons Attribution license.