FILTERS:

Pets

12 November 2009

"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."

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.

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.

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 a special resolution amending PCR 1 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 i.e. 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.

Jennifer Paddock is a lawyer and course convener from Paddocks, specialist sectional title training firm. Please see www.sto.co.za for free sectional title advice or www.paddocks.co.za for sectional title training information.

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