By Carryn Melissa Durham
Three of the most contentious issues that arise in sectional title schemes are parking, people and pets!
“Animals, reptiles and birds
(2) When granting such approval, the trustees may prescribe any reasonable condition.
(3) The trustees may withdraw such approval in the event of any breach of any condition prescribed in terms of sub-rule (2).”
The purpose of such a rule is to avoid nuisance caused to other residents. 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. The trustees cannot unreasonably withhold that permission. An absolute prohibition to keep a pet could be considered unreasonable. The trustees should carefully consider any application for permission, and should discuss and consider the issue at a trustee meeting. Trustees are obliged to individually consider each request for permission to keep a pet. They must base their decision of 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. 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 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 trustees must give any permission to an owner or occupier in writing and it must be signed by two trustees in compliance with PMR 27. The text should include a description of each pet and set out any conditions imposed. The consent should be conditional that the pet owner agree in writing to conditions. The pet should not be allowed in scheme until body corporate in possession of a written confirmation of that agreement signed by the owner 
The trustees should prescribe reasonable conditions on the permission to keep a pet [PCR 1(2)]. 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 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 stated that the dogs are only 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 (which identifies the pet and the applicable conditions set) should be kept so as to avoid situations were it is disputed that permission was granted or not.
The trustees can withdraw permission if it is reasonable to do so. It would be reasonable if the conditions are not being met; the pet is 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. The pet owner must be given reasonable time to remove the pet. 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. 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.
In those schemes where the rule is amended to prohibit pets, a “grandfathering clause” may be inserted to cater for existing pets, providing that existing pets may be kept but that when they die, they may not be replaced.
Image credits: Cutagulta
Article reference: Paddocks Press: Volume 09, Issue 07, Page5.
Carryn Melissa Durham is Specialist Sectional Title Lawyer (B.A LL.B, an LL.M), currently completing her Doctorate in sectional titles. Carryn heads up the Paddocks Private Consulting Division. For more information please contact Carryn on 021 686 3950 or consulting@paddocks.co.za.
This article is published under the Creative Commons Attribution license.
12 Comments.
I would like to know why Trustees can nominate one another indefinitely and seem to hold power over everyone without giving a fair chance to others?
Hi Lorraine,
Thanks for your question. In terms of Prescribed Management Rule 6, Annexure 8 of the Regulations to the Sectional Titles Act 95 of 1986, trustees hold office from their election at an Annual General Meeting until the following Annual General Meeting, where they will be eligible for re-election, if they are nominated.
If there are more nominations received than the vacancies, the members of the body corporate will vote on the nominations received.
Thanks,
Paddocks
Hi Lorraine
Are body corprates allowed to make rules that says only oveners are allowed pets and tentants not. And not give any reasonable reason why the tenants arn’t allowed pets.
Good day.
We live in a apartment where the man next door just took over. He is the Chairman and he only make the choices and the 2 other trustees have no say. my dad is a trustee member and the chairman has make my dad to make changes on our own porch. But when my dad tell him to take off the canopy he refuse, he also forcing us to get rid of our dogs. The story is we had 4 dogs for 6years that we live here. The bodycorp have given us permission to let us have 4 dogs and not more. The chairmen took over this year and the lady that was the bodycorp dog passed away and that means she only have 2 dogs and now he is making me to get rid of 2 dogs. But unfortunately I did today gave one away! But now he is still making me to give away 1 more. Don’t you think that’s unfair? There is no complaints of the other owners and the trustees did not vote for the change he says he is the law. What to do? How do we get this man out of his chairman’s duties? And how to keep my dogs…..? I want my dog back.
Sorry how to find out if the porch is ours and not common property
Dear Veronica,
Thank you for your comment. Please email us on consulting@paddocks.co.za with regards to your matter, and we can provide you with a no-obligation quote, so that we can assist you.
Kind regards,
Paddocks
Good Day
Hope all is well?
We bought a town house in Suger Bush Estate Noordheuwel Krugersdorp.
We never received the conduct rules from the agent when signing the lease.
However we moved in last year end of September 2017, as new owners we wanted to buy 2 puppies but before doing so we walked around in the complex looking at what different breeds were in the complex ,
To see what we would like, there were pug yorkies Pekinese and pit bulls and so on so me and my wife bought a pug (Mojo now 5 Months old) and a pit bull (Ruby 7 Month olds ,the pit bull is the most caring pit bull and does not have 1 single aggressive bone in her body).
So we received the conduct rules from the body corporate on the 20th October’ 2017 after staying there for nearly a month.
Pets rules are only 2 small dogs are allowed as the yards are not big enough for large dogs. And does not state what breed are allowed.
A week of staying in our new place the care taker popped by and asked what breeds we have so we said a pug and a pit bull and she never mentioned that we weren’t allowed to have a pit bull,
She only asked us to please put up fencing so that the puppies doesn’t come out (We did put fencing up). And she still comes by to greed the puppies.
On the 27th of march 2018 we received a letter to say we need to remove our pit bull and have 30 days as they are an aggressive breed.
But Ruby never caused any trouble ever she doesn’t bark when left alone she is well behaved and is going for her obedience classes at end of April’ 2018, she is well socialised since a puppy
We have dam day for the dogs where all the friend get together with their dogs every week and Ruby loves children.
What can we do to keep our dog? Do we have a chance to win this fight?
Kind Regards
Hi Maritza,
Thank you for your comment. We would love to help but unfortunately do not give free advice. Here’s how we can help:
– We offer a Free Basics of Sectional Title 1-week short course. You’ll be able to ask your course instructor any related questions. Find out more here.
– We offer consulting via telephone for R490 for 10 minutes. Please call us on +27 21 686 3950.
– We have Paddocks Club, an exclusive online club, to help you get answers to your questions about community schemes. Find out more here.
Kind regards
Paddocks
Hi Maritza
Does your 10 minute telephone call include written confirmation of the verbal telephonic discussion?
In other words: do you provide written confirmation of the advice/proposed solution?
thanks.
Hi Fox,
Thank you for your comment. The 10-min telephone call generally answers “just one question”, and does not include a written opinion on the matter. Please email us on consulting@paddocks.co.za with regards to your matter, and we can provide you with a no-obligation quote, if you would like us to assist you.
Kind regards,
Paddocks
[…] https://www.paddocks.co.za/paddocks-press-newsletter/permission-to-keep-pets/ […]
[…] https://www.paddocks.co.za/paddocks-press-newsletter/permission-to-keep-pets/ […]