I often get asked by clients ‘Can I have a pet in an apartment?’ This scenario mostly comes up when they have purchased a new unit within a sectional title scheme. Prospective purchasers are often unsure whether the sectional title scheme in which they wish to purchase will allow them to have a pet in their apartment. Often the estate agent says it is pet friendly based on the fact that other owners have pets in the scheme, but that may not be an accurate portrayal of the actual legal position. In this article, I will discuss how to establish whether the scheme is pet friendly or not.
What documents should you ask for to keep a pet in an apartment?
The prospective purchaser should ask the seller (who can ask the trustees or managing agent) for the rules applicable to the scheme. It may be that the Prescribed Conduct Rules (“PCRs”) contained in Annexure 1 of the Regulations to the Sectional Titles Schemes Management Act 8 of 2011 (the “STSM Act”) apply to the scheme. It may be that the applicable scheme has adopted its own pet rule by taking a special resolution of the body corporate to amend the conduct rules.
What do the Prescribed Conduct Rules provide?
PCR 1 deals with the keeping of pets, and states that:
“1. 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 must be done in terms of PCR 1 to get consent for keeping a pet in an apartment?
In terms of PCR 1 owners or occupiers (tenants) can only keep pets (animals, reptiles, or birds) in a section or on any part of the common property once they have received the written consent of the trustees to do so.
Therefore the seller should, on behalf of the prospective purchaser, apply in writing to the trustees for written consent to keep the pet. The purchaser should add obtaining written consent from the trustees as a condition in their offer to purchase. This is important as I have dealt with many clients that have been assured by their estate agent and the seller that the consent would be given, and the sale goes through. After the fact, they learn that they cannot bring their pet into the scheme, and are then placed in a difficult position. It is important to remember that the seller and estate agent are not in a position to grant such consent. It is the trustees who have the legal capacity to give their consent for the keeping of a pet within the scheme.
It is also important to note that an owner who reasonably requires a guide, hearing, or service dog must automatically be considered to have the trustees’ consent to keep that animal in a section and to accompany it on the common property.
The purpose of such a rule is to avoid nuisance caused to other residents. The trustees need to consider whether the pet will unreasonably interfere with others’ rights to use and enjoy their units. In granting such consent the trustees may provide for any reasonable condition that would be appropriate in the circumstances to ensure that the risk of nuisance is reduced to a reasonable level in regard to the keeping of the pet in the section or on the common property. The trustees may withdraw any consent if the owner or occupier of a section breaches any of these conditions imposed.
What can be done when the trustees withhold their consent for a pet in an apartment unreasonably?
The trustees cannot unreasonably withhold their consent. Furthermore, an absolute prohibition to keep a pet (otherwise known as a “blanket ban”) could be considered unreasonable. The question of the reasonableness of the actions of the trustees, in the withholding of permission and setting conditions, will depend on the nature of the animal, reptile, or bird concerned, and the circumstances of the scheme.
Courts have 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.
In circumstances where the trustees unreasonably withhold their consent, an owner can make an application to the Community Schemes Ombud Service in terms of section 39(4)(e), which states:
“An application made in terms of section 38 must include one or more of the following orders: In respect of meetings an order declaring that a particular resolution passed at a meeting is void on the ground that it unreasonably interferes with the rights of an individual owner or occupier or the rights of a group of owners or occupiers.”
What must be done where the scheme has adopted its own pet rule?
It is not unusual for the conduct rule to be amended to allow for only certain types of pets to be brought into the scheme; to restrict the owners to a certain amount of pets; to require pets to be sterilized; and to include more specific conditions that apply automatically whenever consent is given.
It even occurs that in some schemes the conduct rule is amended to prohibit future pets. In these schemes, a “grandfathering clause” is inserted to provide that existing pets may be kept but that they may not be replaced when they die. This may lead to the misconception that a scheme is in fact pet friendly, where that may not be the actual legal position.
Where sectional title schemes have adopted their own pet rule, the prospective purchaser should check whether the rule was properly adopted. Where a prescribed conduct rule is amended a special resolution of the body corporate is required. In order to establish whether the new conduct rule was validly adopted and is enforceable by the trustees the owner needs to ask the following questions:
- Was proper notice given for the meeting at which the special resolution was taken?
- Was the wording of the proposed conduct rule added to the notice convening the meeting?
- Did the agenda for the meeting include the wording of the proposed special resolution to amend the conduct rules?
- Did 75% (in number and participation quota value) of the owners vote in favour of the special resolution for the adoption of the new pet rule?
- Did the body corporate lodge with the chief ombud a notification in the prescribed form of amendment?
- Did the chief ombud provide a certificate of approval of the new rule?
What can be done in circumstances where the pet rule is unreasonable?
In terms of section 10(3) of the STSM Act, the conduct rules must be reasonable and must be applied equally to all owners of units. In circumstances where the pet rule may be considered to be unreasonable, an owner can make an application to the Community Schemes Ombud Service in terms of section 39(3)(d), which states:
“An application made in terms of section 38 must include one or more of the following orders: In respect of scheme governance issues, an order declaring that a scheme governance provision, having regard to the interests of all owners and occupiers in the community scheme, is unreasonable, and requiring the association to approve and record a new scheme governance provision-
(i) to remove the provision;
(ii) if appropriate, to restore an earlier provision;
(iii) to amend the provision; or
(iv) to substitute a new provision.”
Conclusion
Before purchasing a unit in a scheme, the prospective purchaser should follow the above-mentioned steps to ascertain whether the scheme is pet friendly and whether the trustees would exercise their discretion in granting consent for that specific pet to be brought into the scheme.
