Article by Fawzia Khan - Durban Attorney
As more people opt to move into cluster homes and sectional title developments, the issue of whether or not your pet is allowed to live with you in these types of dwellings can become a source of conflict and tension between the homeowner and the Body Corporate of the Sectional Title scheme.
Homeowner Associations (not to be confused with Body Corporates of Sectional Title Schemes), which are often found in gated estates, are allowed to impose their own rules regarding what animals are allowed or not allowed on the estate. When an owner takes ownership of property in these estates, he would be deemed to have contractually agreed to abide by all the rules which govern living on that particular estate. This would include the rules around pets. If he flouts the rules, there could be penalties. To own a pet in a sectional title development, you would need written consent from the Trustees of the Body Corporate.
The Sectional Title Act and Regulations govern the rules for people who live in in these types of housing developments. These regulations govern what the way the Trustees in a Body Corporate may function. The primary objection is to seek to create a balance in protecting the owner’s right to use and enjoy his property without creating a nuisance to his neighbour and at the same time allow the owner the right to own a pet. The key to achieving this balance lies in the fact that the parties must be reasonable in their approach. This means that in deciding whether or not to give permission for a particular pet to be allowed to reside with an owner, all competing factors must be taken into account.
The trustees are not allowed to refuse permission without properly considering the application for consent to be granted. There is a well established legal precedent where the court held that the trustees of a body corporate are legally required to consider every application on it’s own merits. They cannot take a blanket ban approach. If they unreasonably withhold consent, the owner could take the trustees to court.
In the case of Body Corporate of The Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D), the court found that the trustees were compelled 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. However trustees could attach conditions (again it must be reasonable) in granting an owner permission to own a pet. Part of the condition could be that in the event of the owner failing to abide by them, the consent would be withdrawn. Should such consent be withdrawn, can the Body Corporate then forcibly remove the pet? The answer is No. They do not have the authority to do so. The Trustees of the Body Corporate would need to go to court and get an order from the court allowing them to remove the pet.