The issue surrounding this is not a grey area. According to Prescribed Conduct Rules in Annexure 1 of the Regulations to the Sectional Titles Schemes Management Act (Act 8 of 2011) (the Act), consent must be obtained, which consent cannot be unreasonably withheld:
Keeping of animals reptiles and birds
- The owner or occupier of a section must not, without the trustees’ written consent, which must not be unreasonably withheld, keep an animal, reptile, or bird in a section or on the common property.
- An owner or occupier suffering from a disability and who reasonably requires a guide, hearing or assistance dog must be considered to have the trustees’ consent to keep that animal in a section and to accompany it on the common property.
- The trustees may provide for any reasonable condition in regard to the keeping of an animal, reptile, or bird in a section or on the common property.
- The trustees may withdraw any consent if the owner or occupier of a section breaches any condition imposed in terms of sub-rule (3).“
The rule is quite strict: if consent is given for one pet, then the tenant or purchaser may not have a second. Further, if the pet passes away (even within the first few days), then the tenant or purchaser may not automatically replace the animal. The tenant or purchaser will have to obtain consent anew for the pet as the original consent only covered the first pet and not any subsequent pets.
The purpose of such a rule is simply to avoid nuisance, albeit the pet may be beloved by you, this is not the case for others. Trustees are to consider each case individually, and this was illustrated in the matter of the 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 to have been grossly unreasonable and held to have failed to apply their minds when they refused a lady permission to keep a small dog.”
Albeit this case was decided before the amendments to the Sectional Titles Schemes Act 95 of 1986, it highlights the issue of consent. Trustees cannot blanket refuse; each case is to be decided on its merits. This does not apply to complexes where there has been a decision taken to refuse all pets and, when entering into negotiations with potential purchaser or tenants, the said parties need to be made aware upfront. There is also the possible situation of a potential purchaser or tenant claiming that the animal in question is a support animal or guide dog for the blind, the writer here having had first-hand experience of this. Again, the approval will not be automatic, so keep your tenant or purchaser from getting their hopes up and remember to check the rules of the scheme to see what the situation is here. Regarding guide or support animals, actual physical proof by means of actually being blind or, in the case of a support animal, proof that the animal is required due to some form of psychological dependence must be submitted.
If the situation is that the tenant or purchaser just has a particularly strong attachment to the animal, then this will not be proof enough, an actual psychological or medical (disability) must be submitted in order to prove the need.
Trustees should, when deciding, take into light the size of the animal. We can use a dog as an example: are there any restrictions in terms of municipal by-laws, nuisance guidelines, the size of the unit, just for example’s sake. Rules should be in place restricting the dog only to the unit and that the owner confirms that the dog will not become a nuisance in the future. If the developer or scheme elects to amend the conduct rules, stating that the animal must be of a certain size, sterilised and restricting the ownership to one or two animals per owner, then it must be noted that this is permitted so long as said rules are reasonable as per section 10(3) of the Act, which states that:
“Conduct rules must be reasonable and must be applied equally to all owners of units.”
As any unreasonable rule can be challenged and overturned, it is important to read the rules of any scheme before introducing potential purchasers or tenants into the scheme. It is important to know that many schemes have a “grandfathering Clause” where, if a pet passes, it may not be replaced and the trustees will automatically refuse consent to a replacement, which refusal will not be considered unreasonable as it is contained in the rules of the scheme.
Therefore, it is important to read the scheme rules for any sectional scheme that you are purchasing, about to rent and or acting as agent for the Seller or landlord. Secondly, when attending to either a potential sale or lease of a unit in a scheme, make sure to attach a copy of the rules to the lease agreement or sale agreement and have the clients initial each page of the rules so that they are made aware of any particular rules that may cause them harm.
Author: Robert Louw / ESI Attorneys