LET'S TALK Pets and sectional title schemes: what does the law say?
For many, ‘home is where my cat is’ (or dog or parrot). But for others, pets are not part of their everyday lives. So when it comes to moving into a new abode in a sectional title scheme, whether you’re a first-time home owner or scaling down, taking your beloved animal companion with you or acquiring one with which to share your new space can become a problematical issue: contentious and charged with emotion. This is understandable, given that it involves people, with and without pets, living in close proximity to one another and having equal rights to shared facilities. So where does the current law stand on incorporating pets into life in a sectional title scheme?
A good starting point for animal lovers looking to buying into a sectional title scheme would be to study the existing rules of the scheme. Should pets be expressly forbidden, check whether provision is made for a potential or existing home owner to seek special dispensation upon application to the body corporate or trustees of the scheme. One must also consider existing case law; in Buffelsdrift Game Reserve Owners Association v Holkom the court heard that a number of home owners had been keeping domestic animals on their properties for several years without the prescribed consent as stipulated in the constitution of the homeowners’ association. When some time later, newly appointed trustees of the homeowners’ association sought to enforce the rule and ban domestic animals from properties, the residents’ refusal to comply forced the association to go to court. The court held that the association, by virtue of its continuous inaction in addressing the contravention of the rules by owners, had waived its right to apply to court for an order prohibiting the owners from keeping the animals on their properties.
This court case was decided prior to the enactment of the Community Schemes Ombud Service Act 9 of 2011, which came into effect on 7 October 2016. This new legislation provides for a legal structure, known as the Community Schemes Ombud, to monitor and control the administration of private and common areas in all community schemes (which include sectional title schemes and homeowners’ association developments). The Community Schemes Ombud is also tasked with dealing with any disputes that might arise in such schemes between various parties, be they owners, occupiers or managers. A party choosing to approach the Ombud must have first exhausted all internal remedies in terms of the rules of the relevant community scheme. Having received an application, the Ombud will then notify the relevant community scheme and all the parties concerned. Such notice will provide details of where the documentation relating to the application can be inspected and will invite the affected parties to make written submissions. The notice will also confirm whether or not legal representation will be allowed during the adjudication process. An adjudicator has a wide range of investigative powers to enable resolution of the dispute. The adjudicator will consider all the findings and will either grant or refuse the order sought by the applicant, based on all the relevant facts and on the law (including previous case law).
The adjudicator’s decision may be appealed in a High Court, but only in respect of questions of law. The appeal must be lodged within 30 days after the date of the adjudicator’s order. Provision of an Ombud does not mean that an aggrieved party in a sectional title scheme dispute cannot still choose to approach the courts for resolution. But it must be noted that the new Community Schemes Ombud aims to provide effective and affordable dispute resolution services when it comes to community schemes, which includes sectional title schemes.
Approaching the courts in a sectional title dispute, such as that arising from allowing/banning pets, is thus advisable when it is clear at the outset that the facts and legal issues involved are of a complex nature.
In summary: If refused permission to keep pets in a unit or common property of a sectional title scheme, inspect the rules of the scheme. Remember, the rules of a body corporate must always be reasonable and have equal application to everyone in the scheme. Check whether keeping pets is expressly forbidden or whether a decision to allow or forbid pets lies within the discretion of the trustees of the body corporate. Be honest about whether your pet might be regarded as a nuisance by any of the co-owners within the scheme. If there is no stated or apparent reason why your pet should not be permitted on the property, be sure always to exhaust all internal remedies (whether or not provided for in the rules or constitution of the body corporate) before making the decision to approach the Ombud or a court.