THE OUTRIGHT BAN OF PETS BY BODY CORPORATES
BACKGROUND
The keeping of pets in a sectional title scheme is always controversial. In a study conducted in 2011 it was reported that:
85% of pet owners regarded pets as family;
57% of pet owners were of the opinion that they are their best friends;
81% of pet owners did not feel alone when surrounded by pets.
Pet owners are unwilling to purchase property where pets are not allowed, and property values are higher in pet-friendly title schemes.(van der Merwe)
THE SECTIONAL TITLES SCHEMES MANAGEMENT ACT, 8 OF 2011
Section 10 of the Act makes provision for a scheme, from date of the establishment of the body corporate to be regulated and managed by means of management and conduct rules. Both, management as well as conduct rules must be reasonable and applied equally to all owners of units (Section 10(3)). The Ombudsman must consider the reasonableness and appropriateness of the rules when asked to adjudicate on it (Section 10(5)(b)).
REASONABLE/UNREASONABLE
The test to determine whether a rule is reasonable or unreasonable is objective.
The following can be advanced as reasons why a complete prohibition on the keeping of a pet will be unreasonable:
“The blank prohibition of pets unreasonably precludes the exercise of the ownership rights of use and enjoyment in accordance with contemporary standards which also include the right to keep a pet.”(Paddock) The Sectional Title Act stipulates that the owner of a unit in a sectional title scheme acquires separate ownership in his/her unit which entitles him/her to enjoy and use it by exercising the ordinary incidents of ownership to the extent which he/she is constrained in law to do so. The keeping of a pet is a good example of an incident of ownership which entitles an owner to enjoy and use his/her property. This right of an owner will only be limited if the animal causes a nuisance or a hazard to other residents. In normal circumstances there will be conduct rules that will apply to incidents of nuisance and harm to other residents. Less restrictive sanctions can be imposed if there is a contravention of these rules.
“The ban on pets does not provide a mechanism for a body corporate to consider the individual circumstances of an owner/occupier.” (Paddock) It will be unreasonable to limit the right of an owner if the limitations do not rationally viewed, adversely affect other residents’ enjoyment of their units or the common property. What adverse effect does a goldfish in a bowl of water hold for other residents? The ombud/court must consider this objectively and determine the issue by the application of contemporary standards relating to the value of keeping animals in a sectional title scheme. The individual circumstances of an owner/occupier must be considered.
A blank prohibition on the keeping of an animal does not permit a balanced consideration of all involved sides to the question but operates only to the advantage of owners who oppose pet ownership. (Paddock) The test for a blank prohibition on pets is therefore whether the rule is reasonable and apply equally to all residents in the sectional title scheme, in view of the circumstances of the sectional title scheme. (Van der Merwe)
The mere fact that a rule exists to prohibit the keeping of a pet does not mean that a purchaser into a scheme may not challenge the rule on the basis that it is not reasonable and does not apply equally to all residents in the scheme. The general argument is that by amending the conduct rule to include a “no pet” rule the matter becomes one of contract. The same reasoning is applied to a purchaser or a tenant signing a lease agreement. That is not the correct approach as section 10 makes provision for rules to be adopted by body corporates to manage the peaceful co-existence of residents. Furthermore, the rules of a sectional title scheme do not come into existence because of conscious and mutual agreement. In normal circumstances the Trustees will submit the rules (amended rules) to the members to approve it by special or unanimous resolution. The process is more quasi-legislative in nature.
NEW SOUTH WALES COURT OF APPEAL
The New South Wales Court of Appeal recently overturned a no-pet rule in a Strata plan scheme. The legislation of New South Wales regarding Strata-plan schemes is like the South African legislation in regard of sectional title schemes. The arguments in this judgment can be applied in similar cases in South Africa to determine whether a blank prohibition on pets in a title scheme is reasonable. The court in New South Wales ruled that a no pet rule is “harsh, oppressive and unconscionable”.
CONCLUSION
Body corporates should adopt rules that are reasonable and equally applied to all owners/occupiers in the scheme for example that no pets are to be allowed without the written permission of the body corporate and on certain conditions. The rule must be reasonable and take into consideration the specific circumstances of the scheme. The application of “hard and fast” rules have been rejected in many court cases and specific individual circumstances must be considered. The court in one instance described the ban on cats, but not on other pets, as grossly unreasonable.
The purpose of these rules is to harmonize the co-existence of members and not to create conflict.
Article by Barend Kruger (Director) B IURIS DIP LEGUM LLB LLM (UNISA)
For more information kindly contact barend@rgprok.com or 044 601 9900. www.rgprok.co.za
Acknowledgement
- Paddock, G. South Africa`s leading sectional title academic confirm that ‘No pets” rules are invalid. 30/06/2021.
- Van der Merwe, CG 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. TSAR 2021-3.456-473.
- law. Pets and sectional title complexes. https.//www.vandeventers.law
Disclaimer
Nothing contained in this publication is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication is intended for educational and informational purposes only.
