Keeping pets in sectional title complexes

If you are a pet lover or are considering buying a pet, check the rules of your sectional title complex – or face the very real possibility of heartbreak later.

Specialist sectional title attorney and director at BBM Attorneys, Marina Constas, says that the subject of pet ownership is guaranteed to get almost any sectional title owner hot under the collar, irrespective of the side of the fence on which they found themselves.

She says there are as many variations to rules on keeping pets as there are complexes, and the best place to start when debating whether or not owners may keep pets is the conduct rules.

“The model conduct rules contained in Annexure 9 of the Sectional Title Act simply state that the keeping of pets in a 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. For example, that the pet in question must be neutered or spayed or that, when a dog is taken for a walk on common property, it must be on a leash.

“In recent years, a number of court decisions have dealt with the interpretation of this conduct rule and have provided guidelines. In essence, various judges noted that trustees do not have the right to merely deny any request by an owner to keep a pet. The trustees are called upon to apply their minds to each request and consider the merits of each one. This is a legalistic way of saying that the facts of each case must be judged separately.”

In one instance, trustees turned down a request by an elderly lady in a block of flats to keep her lap dog, a little Maltese poodle. The dog provided much needed companionship and the owner made sure that it was not a nuisance to other residents and was always carried when on common property.

“The trustees were held not to have applied their minds in the matter and the court found for the lady and her dog. The dog was thus made a legal resident of the block of flats in question,” Constas says.

Although the model conduct rules are not necessarily suited to each and every body corporate and can be amended or added to by special resolution, she cautions residents to be aware that wording is everything.

“If a property passed and filed a rule that no pets are allowed, then you can stand on your head, but no pets are allowed. No judge or arbitrator will find in your favour if you decide that you want to keep Bushy the Bouvier or Lavender the Labrador – or even Rapunzel the reptile for that matter.”

Aware that the subject of pets is an extremely emotive one, Constas suggests that the sectional title environment greatly magnifies the requirements of the South African law of nuisance, especially when it comes to pets causing a nuisance to fellow residents of a scheme.

“It would be wonderfully practical if developers, architects and owners adopted a different perspective on the issue because the context of environmental design is crucial to creating more pet friendly complexes. Studies worldwide have shown that people who own pets enjoy enhanced health and increased longevity. Pets fulfil the need for companionship, mental and physical stimulation and provide a multitude of other advantages. Managers of retirement villages, in particular, should remain sensitive to the fact that elderly people, especially those who have lost spouses, only maintain the will to go on because of the love they have for a dog or cat. Often pets fill an important gap when families don’t have enough time for them.”

However, what happens when more than 75 percent of the owners in a sectional title complex decide to amend the pet rule to exclude pets completely and there are already pets in the complex?

“In fairness, we suggest that the rule be worded to read that existing pets be allowed to remain and not be replaced after they die. From the date of the amended rule, no new pets may be brought into the complex.”

However, as Constas points out, when it comes to pet ownership nothing is simple.

“In keeping with the never a dull moment theme in sectional title, a lady was taken to arbitration for bringing in a new puppy after her dog had died. She insisted that the puppy was, in fact, her old dog in a new guise and that it had lost a considerable amount of weight. An identity parade and a vet’s certificate confirmed that in desperation to keep her new companion, the woman had stretched the truth somewhat.”

The other side of the coin, she says, is that pet owners need to be responsible. This can mean anything from simply choosing the right pet to fulfilling an obligation both to that pet and to neighbours to care for it properly.

“Ironically, the smallest dogs usually make the most noise and have the highest energy levels, whereas certain breeds of cat are far happier being housebound and shed less hair than their doggie counterparts,” she says, adding that, in Europe, most pet owners are prepared to walk large dogs such as St Bernard’s or Great Danes – to compensate for their restricted home environments.