What
laws apply to keeping a dog in a sectional title complex?
A client complained
that her body corporate won’t allow her to keep a small dog in her unit, and
asked me about her legal rights.
The first place to look is in the conduct rules of the complex. Annexure
9 of the Sectional Title Act states that the keeping of pets in a sectional
title scheme is permitted, subject to the prior written consent of the
trustees, who may not unreasonably withhold their consent. These rules also
state that the trustees may impose any reasonable condition on keeping a pet (e.g.
no large animals, cats must be neutered or spayed, etc.)
Our judges, who have heard pet cases, have found that trustees must view
each request to keep a pet, objectively, and not dismiss any request out of hand,
without fairly considering the circumstances of each case.
Unfortunately, if the conduct rules of a complex specifically provide
that no pets are allowed, stand on her head, an owner has no right to complain
and if she brings a pet onto her property, the body corporate may and will ask
her to accommodate the pet elsewhere.
What if the rules permit the keeping of pets, subject to approval, and
the trustees refuse to give their permission?
In the case of Body Corporate of the Laguna Ridge Scheme No
152/1987 v Dorse 1999 (2) SA 512 (D), Dorse kept a Yorkshire Terrier dog, without
necessary approval. The trustees told her to house the dog elsewhere. She
refused so the trustees brought an application to court for an order that she remove
the dog from her section. Dorse opposed the application and brought a counter
application to review the decision of the trustees to refuse her permission to
keep the dog, and for an order that she be allowed to keep the dog on condition
of specific circumstances.
When considering
the question of whether the decision of the trustees was open to review, the
court had to bear in mind whether the trustees had genuinely applied their
minds to the owner’s application for consent or had refused it purely as a hard
and fast rule to refuse all such applications so not as to create a precedent
of allowing residents to house dogs. When considering the trustees’ reasons for
the refusal of the owner’s application the court found that the decisive factors
in refusing same were namely –
·
the general policy; and
·
the issue of precedent.
With regard to the
general policy the court held that by simply applying a general policy the
trustees had not truly applied their minds to the owner’s application and had
not genuinely considered departing from the general rule.
Furthermore, the
court found that the question of precedent was not a relevant consideration and
ought not to have influenced the trustees’ decision. If each decision by the
trustees to grant or refuse such permissions was to be considered on its own
merits that decision would not constitute a precedent because it would be a
decision based on the facts and circumstances relevant to the particular case
under consideration. A refusal to grant permission in a particular case simply
because it would create a precedent would be tantamount to a failure to
consider and decide the application on its own merits and would result in a
refusal to depart from the general policy of not granting permission. As such the
court held the decision of a trustee was reviewable under the common law.
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