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August 30, 2019

How does a Body Corporate deal with pet problems in sectional title schemes?

Prescribed Conduct Rule (“PCR”) 1 deals with the keeping of pets, and states:

Keeping of animals, reptiles and birds: 

(1) 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.

(2) 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.

(3) 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.

4) The trustees may withdraw any consent if the owner or occupier of a section breaches any condition imposed in terms of sub-rule (3).

What does a breach mentioned in (4) mean, and when can the trustees of a body corporate withdraw their consent?

Trustees must use the standard of the ‘reasonable man’ and can only withdraw their consent to the keeping of a pet if an owner breaches any of the reasonable conditions imposed by them in granting their consent. Withdrawal would be reasonable if: 

  • the conditions are not being met (for example an owner keeps four dogs instead of two);
  • the pet is causing a nuisance to other owners or occupiers (for example where a dog is barking persistently); or
  • the pet is considered dangerous to other owners or occupiers (for example where an offending owner keeps a poisonous snake as a pet).

Before consent is withdrawn, the owner must be given: 
  • notice of the breach;
  • an opportunity to remedy the situation;
  • a hearing where evidence is given;
  • the trustees’ must be decided by majority vote;
  • the trustees’ decision must be minuted;
  • the owner must be given written notice of the withdrawal of consent; and
  • the pet owner must be given a reasonable time to remove the pet.

If the owner refuses to remove the pet, the body corporate is not entitled to forcibly remove a pet from a person’s possession. It can approach the local SPCA to intervene and if justified implement legal process to remove the pet.

Another option is to get an adjudication order for the removal of the pet from the Community Schemes Ombud Service (“the CSOS”). In terms of section 38 of the CSOS Act it is possible that any person may make an application to the CSOS if such person is a party to or affected materially by a dispute. The Body Corporate can therefore make an application to the CSOS to declare a dispute against the owner who has kept their pet in the scheme despite the trustees having withdrawn their permission.

August 25, 2019

When can a landlord use a duplicate set of keys to enter leased premises?

A CLIENT ASKED: As a landlord/owner, is it their right to have a set of keys to an apartment they are renting out?  I read somewhere that in an emergency, fire or burst pipe, it is the landlords right to be able to enter (but only in the case of an emergency) and in all other instances they need permission to enter to inspect.  Is there a law re this?

The short answer is that the landlord should have a duplicate set of keys, provided he or she doesn't invade the privacy of the tenant and only uses the keys in a case of emergency. To avoid doubt, this is a provision that should be included in a lease agreement.

In terms of the Rental Housing Act, 1999, as amended, it is an offence that may result in the imprisonment of the landlord or a fine (although imprisonment is highly unlikely) if the landlord, amongst other things, provides the tenant with a dwelling that is uninhabitable or fails to maintain the leased premises.

A landlord may not enter leased property without giving a tenant reasonable notice and then only to inspect the property, to make repairs to the property, to show the property to a prospective tenant, purchaser, mortgagee or its agent or if the property has been abandoned or having obtained a court order.
What about situations of sudden emergency?
A landlord may well need a key in order that he may be able to enter quickly in the event of emergency – fire, burst pipes or whatever. He may need a key to enable him or those authorised by him to read meters or to do repairs which are his responsibility. 
I would suggest that a landlord should indeed hold a set of keys, to carry out necessary repairs expeditiously, with the permission of the tenant – in the ordinary course, and without his or her permission – in the case of emergency.
I fail to see how the landlord can carry out the works “expeditiously” if the landlord does not hold a key.

An agreement of lease should contain a clause dealing with Lessor’s rights of entry and carrying out of works that contains not only the usual rights of the landlord (or his agent) to enter the premises to inspect them, to carry out any necessary repairs, replacements, or other works, or to perform any other lawful function in the bona fide (good faith) interests of the landlord or the tenant, provided that:

·         The tenant’s right to privacy cannot be violated during the lease period;
·         Should the landlord wish to inspect the property, reasonable notice to the tenant must be given;
·      The landlord shall hold duplicate keys to enter the premises without notice, only in the event of emergency – fire, burst pipes or whatever – and if the tenant is not available to seek his prior permission. The landlord must handle the keys in a proper and responsible manner.
Without such written permission to hold keys and enter the premises to deal with a burst pipe, the landlord will have to exercise his discretion in good faith in the interests of the landlord or the tenant. That could lead to later legal arguments.