In an article in the third 2021 edition of the prestigious Journal of South African Law (pages 456 to 473), Professor C.G. van der Merwe analysed a recent Australian case which is directly applicable to sectional title management in South Africa. He confirmed that all the same principles apply to sectional title rules, considered applicable case law and came to the conclusion that in a South African sectional title scheme, a “blanket pet prohibition” rule is invalid.
In the article, entitled “Is a scheme rule prohibiting the keeping of animals in a sectional title scheme invalid? Lessons from the landmark decision of the New South Wales court of appeal” Prof. van der Merwe analysed the multi-faceted test applied by the court in the New South Wales case, noted that owners who buy into a scheme are not contractually bound to the rules and, in his concluding paragraph, gave his opinion that:
“A rule containing a blanket prohibition on the keeping of animals is unreasonable and therefore invalid because it:
- does not provide a mechanism for the body corporate to consider the individual circumstances of each owner or animal;
- unreasonably and unnecessarily precludes the exercise of the ownership rights of use and enjoyment in accordance with contemporary standards which include the entitlement to keep a pet; and
- does not permit a balanced consideration of the multiple sides to the issue, but operates only in the interest of sectional owners who oppose pet ownership.”
In my view all the principles identified by Prof van der Merwe will also apply in a South African home owners association, or any other form of community scheme, and I expect that judges and CSOS adjudicators will be guided by his opinion.
If your community scheme has a “no pets” rule and you want to have the rule set aside so that you can keep a pet, your chances of having the CSOS or in the High Court rule that it is invalid are very good. Conversely, if you are a managing agent for or a trustee of a community scheme that has such a rule, now is the time to propose and adopt a new pet rule that will be enforceable.
Graham Paddock is a specialist community schemes attorney, notary and conveyancer. He has been advising clients and teaching students for over 40 years, and was an adjunct professor at UCT for 10 years.
Article reference: Paddocks Press: Volume 16, Issue 6.
This article is published under the Creative Commons Attribution license.
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