It is not uncommon to find in conduct rules or management rules regarding pets in sectional title complexes. The rule, “No Pets Allowed”, causes much conversation and debate within the community schemes industry. An article by CG Van Der Merwe (“Is a Scheme Rule prohibiting the keeping of animals in a sectional title scheme valid? Lessons from the landmark decision of the New South Wales Court of Appeal”) provides an in-depth investigation to the legality, reasoning, and challenges emanating from this rule. This article delves into both national and international case law to answer the question of the validity and lawfulness of the rule.
The facts of the pets in Sectional Title complexes article
The article leans mainly on the Cooper v The Owners – Strata Plan No 58068 2020 NSWCA case held in a state on the east coast of Australia, the facts are briefly as follows:
Mr. and Mrs. Cooper are owners of a unit in a community scheme and own a small dog in their apartment in contravention of the by-laws. The scheme has a “no pets” by-law which was registered at the inception of the scheme, however, the Cooper’s dog spent most of its life in the community scheme without any complaints from other owners. In the years 2015 and 2018 respectively, the Coopers sought to have the rule “no pets” invalidated and replaced by way of a special resolution. They approached the relevant tribunal in their jurisdiction to which a decision was held to the effect that the “no pets” by law is “harsh, unconscionable or oppressive” and as a result invalid. The owners of the community scheme appealed the decision of the tribunal, and the appeal panel reversed the invalidity decision found by the tribunal ordering the Cooper’s small dog to be removed within 28 days.
The judges, in this case, provided a very detailed rationale for their decision. We can derive ground-breaking lessons on their reasons, specifically the following three points:
1. Schedule 3 of the Strata Schemes Management Regulations of 2016 which are model by-laws sets out a more pet-friendly approach to the “no pets” rule and Regulations in totality provide for a more progressive and collaborative approach. Concerning pet ownership, the rules are as follows:
Option “A” states that a pet owner must notify all other owners of the community scheme in writing. Ensure that the pet is always on the owner’s property and supervised when in common areas and clean after the pet where it has soiled.
Option “B” resembles Option “A” with the addition of consent required from the trustees/owners cooperation and lastly, should the pet be alleged to be an assistance pet evidence to that effect must be brought forward to the trustees/owners cooperation.
The options provided by the Regulations are less oppressive in that they do not limit the enjoyment of individual owners’ property rights and/or favour of the enjoyment of other owners’ property rights like owners who have pets.
The Horizon community scheme by-laws applied from the registration of the scheme in 1998 and were not modified when the Strata Scheme Management Regulations were introduced in 2016 thence when contrasted, the by-laws of the community scheme and the model by-laws are contradictory especially on the question of law.
2. The incidents of property ownership: property owners, even those within a community scheme are allowed to enjoy their properties except in instances that lawfully constrain them and/or to an extent that does not limit the use and enjoyment of other property owners. Statues or by-laws should be modelled to promote a harmonious community scheme living environment rather than to limit the property rights of owners in a way that restricts (unfairly) the use and enjoyment of other owners.
3. The by-law was found to be “harsh, unconscionable or oppressive” because it prohibits enjoyment of one’s property rights – keeping of a pet- without any just cause or reason and can be viewed as administratively convenient because it does not require trustees/owners cooperation to lend their minds to investigate if the keeping of animals would be hazardous, a nuisance or an annoyance to other community scheme owners.
How does this relate to South Africa?
In the South African context, it is primarily the duty of the Chief Ombud as confirmed by the Community Schemes Ombud Services Act of 2011 to ensure that community scheme rules are reasonable, apply equally to all owners, and are appropriate to the specific complex. The Chief Ombud must exercise his/her function within the confines of the Constitution of the Republic of South Africa, 1996 with specific reference to Section 25 (Property Rights) and Section 36 (The Limitation of Rights) and also the Sectional Titles Schemes Management Act 8 of 2011, its Regulations and Annexures.
The South African authority regarding the “no pets” rule is found in the decision made by an adjudicator of the Regional Ombud Service in Pretoria in the case of Van Niekerk v Ireland Gardens BC CSOS 736/GP/17. The case emanated from the applicant, an owner of a unit at the Body Corporate of Ireland Gardens seeking permission to keep her kitten contra to the “no cats” provision in the scheme’s rules which since 2009 prohibited cats in the scheme save from cats that were already inhabiting the scheme.
The applicant applied to the Ombud for an order declaring the “no cats” rule as discriminatory against her as a cat owner while dog owners were permitted to have their pets within the community scheme premises. The adjudicator stated that the “no cats” rule was unreasonable and not equal in application furthermore it was discriminatory- as it limited the use and enjoyment of the property rights of cat owners. The discriminatory nature of the rule stems from the fact that the rule applies exclusively to cats and not all pets. The “no cats” rule was subsequently set aside on grounds that is unreasonable and of unequal application thus prejudicing other owners.
By-Law 5 of Schedule 3 to the Strata Schemes Management Regulations of 2016 resembles our Rule 1.1 of Annexure 2 being the Prescribed Management Rules in that it requires owners/occupiers of a sectional title scheme to obtain the written consent of the trustees before keeping an animal in a section or on the common property. It must be mentioned that trustees may not arbitrarily or unreasonably refuse permission without considering the circumstance of each case. In the case of The Body Corporate of The Laguna Ridge Scheme No 152/1987 v Dorse 1999 2 SA 512 (D) it was held that if the trustees do not apply the necessary discretion and refuse permission, the owner of the animal is entitled to keep the animal in the sectional title scheme, this is the default position.
The reasoning raised by the appeal bench in the Cooper Case can be relied on to declare the “no pets” rule within South African sectional title schemes as invalid, the principles of the case and the of the South African legislation can be married to reach this declaration. Firstly, it is of paramount importance to note that the interests of all property owners and occupiers must be balanced. Secondly, no ones’ property rights must be limited unfairly and outside the bounds of Section 36 of the Constitution thus the keeping of pets should be considered as an incident of property ownership. As a result, the Chief Ombud when considering sectional title schemes management rules should do away with the blanket approach of prohibiting pets within schemes. If restrictions are imposed, it must be based on the specific circumstance specifically if the animal is hazardous, causes a nuisance, and or unreasonably limits the enjoyment of the property rights of other owners within the community scheme. New purchasers of sectional title units must also be informed to know that even if scheme rules are adopted unanimously or by majority those rules are and remain voidable irrespective of knowledge of the invalidity of rules on purchase, they may seek to have the questionable rule declared invalid.
In the earlier mentioned case of the Laguna Ridge Scheme, it was also found that trustees must not be idle and adopt a general policy of refusing applications to consider permission to keep pets as these sets precedents for later decisions. Trustees are required to access each case on its own merits. Within the case it was noted that the dog in question did not bark, was carried whenever it left the section and was not at all a nuisance to other owners of the complex. And for those reasons, the court decided that the trustees did not apply their minds in considering the applicant’s request and ultimately the refusal was grossly unreasonable.
In conclusion, blanket prohibitions are unfair and unreasonable thus invalid because they do not create room for consideration based on specific circumstances of owners. Bodies Corporate must create a mechanism within its conduct rules that requires trustees to consider the circumstances of each owner or animal, ensure that all owners enjoy the use of their property equally.
Written by Miss Veronica Bhengu
Legal Compliance Officer at Stratafin