Furry friends or foes? Deciphering pet regulations in community schemes

The multiple facets of pet ownership require careful consideration before an owner introduces their pet into a residence within various sectional title schemes, as this issue has frequently sparked disputes among owners (members), tenants, and bodies corporate. There is a dynamic interplay between pet ownership and community living, such as in sectional title schemes, which presents a unique set of challenges and considerations.

The management of pets within these shared living spaces is governed by a complex legal framework, including the Sectional Titles Schemes Management Act[1] (STSMA), the STSM Regulations, 2016, and various municipal by-laws. This article sets out a brief summary of the legal landscape surrounding pet ownership in sectional title schemes, examining key legislation, some community scheme case law, and rules that shape the rights and responsibilities of pet owners, trustees, and other residents of community schemes.

Prescribed Conduct Rule (“PCR”) 1(1)[2], provides that an owner or occupier (tenant) of a section is not permitted to keep any animal, reptile, or bird in a section or on the common property without obtaining written consent from the trustees, who should not unreasonably withhold this permission. However, they must take into account the specific circumstances of the request and the best interests of the sectional title scheme, including the welfare of other members or tenants within the scheme.[3] This PCR is applicable to sectional titles schemes, but not necessarily to homeowners associations, such as registered non-profit companies, or voluntary associations with a constitution.

When considering whether a member of a body corporate may own a pet within a sectional title scheme, the trustees must first consider whether the applicable scheme has adopted its own pet rules (often contained in the conduct rules of the scheme) by special resolution of the body corporate or via implementation by the developer early on at application for the opening of the sectional title register, or whether they must adhere to the PCRs. The question of the reasonableness of the actions of the trustees in withholding permission and setting conditions, will depend on, among other issues:

• The nature of the animal, reptile or bird concerned; and
• The circumstances of the case, such as the unit size, propensity of the animal to cause a nuisance, the danger level of the pet, the interests and concerns of other residents, and what pets are currently allowed and existing on the estate.

Arguably, the trustees and every owner and occupier, also have to take into consideration, the welfare of the animals. For example, s 2(1)(b) of the Animal Protection Act[4] provides that any person who confines, chains, tethers or secures any animal unnecessarily or under such conditions or in such a manner or position as to cause that animal unnecessary suffering or in any place which affords inadequate space, ventilation, light, protection or shelter from heat, cold or weather, is guilty of an offence and liable on conviction to a fine or to imprisonment or both.

In the case of the Body Corporate of The Laguna Ridge Scheme v Dorse[5] (“Laguna Ridge”), the court 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 case.[6] The trustees were found to have been grossly unreasonable and held to have failed to apply their minds when they refused an owner permission to keep a small dog.[7]

Where owners feel that they do not want any pets in the complex, the conduct rules can be changed through a special resolution.[8] Further to the above, the Community Scheme Ombud Services (“CSOS”) issued a Circular on the Amendment of the Rules in terms of the STSMA in respect of the prohibition of pets in sectional titles schemes.[9] In a list of what the CSOS deem to be “Undesirable Rules”, the Circular provides that the scheme may prohibit pets entirely, however, that prohibition would not apply to a member or occupant that can show that they need medical assistance (such as through service animals).[10] Such animals are automatically permitted anyway as per PCR 1(2) of the STSM Regulations, which provides that an owner or occupier with a disability who reasonably needs a guide, hearing, or assistance dog is deemed to have the trustees’ approval to keep the animal in their section and to bring it onto the common property. The above Circular also provides that where a scheme introduces a “no animal” rule, where previously it permitted pets, they must consider pre-existing pets.[11] An owner that had a pet prior to the coming into effect of the rules must be permitted to retain that pet but may be prohibited from replacing that pet if it dies – the so-called “grandfather clause”.[12]

Permission to own a pet can also be implied tacitly by the conduct of the community scheme. Such permission granted tacitly at times prevents the community scheme from seeking any recourse to force the pet owner to remove the pet from the complex. In Buffelsdrift Game Reserve Owner’s Association v Holkom and Others[13] (“Buffelsdrift”), the residents who owned pets argued that the community scheme had waived its right to enforce the constitution (based on the doctrine of acquiescence).[14] In this case, it was held that the community scheme, through its actions, implicitly consented to the residents owning pets, thereby relinquishing their right to legally prevent the owners from doing so.[15]

In the case of Govender and another v Naidoo and others[16] (“Govender”), the trustees had refused to grant permission to unit owners to keep their pets on the property.[17] This resulted in the unit owners bringing two applications against the trustees of the body corporate.[18] The decision taken by the trustees was set aside by the court, and the trustees were ordered to re-consider the application to keep the pets in all its relevant aspects and to make a decision within 30 days of the order.[19] Among the reasons put forward by the court was that the trustees have simply applied “a hard and fast rule”  which they clearly intended to implement in all cases, regardless of each subjective circumstance, and that the trustees did not in any way consider the question of nuisance, which they should have done.[20] It is imperative that the rules of each respective scheme be reasonable, take cognisance of the PCRs and consider whether the pets to be brought into the scheme may be a nuisance.

Another factor to consider is the size and breed of the dog that the resident intends to bring onto the property. In the interesting case of Abraham and Another v Mount Edgecombe Country Club Estate Management Association Two (RF) (NPC)[21] (“Abraham”), the court held that a large breed dog, a big Saint Bernard, was not a permissible type of dog to be kept as a pet on the estate and the pet owners were ordered to remove the dog from the estate, because the rule was clear and limited debate on what was an acceptable dog to have.[22]

In an application to keep a dog the trustees should look to see if the local by-laws contain any restrictions as to the number of dogs (or other animal) allowed in a dwelling unit.[23] For example, the City of Johannesburg’s By-Laws Relating to Dogs and Cats[24], provides, in s 2(1)(a) thereof, that no person may keep more than two dogs, over the age of six months in or at a dwelling unit. A “dwelling unit” is defined in s 1(1) of the By-Laws as “an inter-connected suite of rooms which must include a kitchen or scullery, designed for occupation by a single family, other than a dwelling house, irrespective of whether such unit is a single building or forms part of a building containing two or more such units”. These By-Laws, or the applicable By-Laws of the local municipality in question could offer guidance when deciding whether it is reasonable or not to grant permission.[25] There should be restrictions on the number and size of the dogs allowed, taking into consideration the circumstance of the owner’s unit and garden.[26] The purpose of pet rules should be to avoid nuisance being caused to other residents.[27] When evaluating the application, trustees should also consider whether the dog (or other pet) will excessively disrupt the ability of others to use and enjoy their units, and determine what conditions would be suitable in such scenarios to minimise the risk of nuisance, or reduce it to an acceptable level.[28]

In terms of s 38 of the Community Schemes Ombud Services Act[29] (“CSOS Act”) an application may be brought before the CSOS by any person who is party to a dispute or affected materially by a dispute within a community scheme. This application may be brought to the CSOS for an order to remove the animal or take specified steps to remedy the nuisance, hazard or interference is sought against the animal owner.[30] The CSOS Act further provides that an application may be brought for an order to remove the animal from the community scheme due to the animal being kept contrary to the scheme governance documentation.[31]

As Marina Constas (Constas) stated, “When living in close proximity in a complex or estate, there has to be a compromise between neighbours”.[32] Important factors to consider when attempting to figure out whether the barking of a dog is causing a nuisance to the neighbours are issues such as, whether the dog barking in the middle of the night, or only during the day, and is the barking unreasonable and incessant.[33] Constas also stated that although unit owners within sectional titles schemes are entitled to reasonable peace and quiet, a complex may not stipulate in its conduct rules that silence must be maintained.[34] If fines for nuisance (noise) like barking dogs are provided for in the conduct rules, then the homeowners association or body corporate may issue a fine to the offending resident, if the particular rule complies with the law.[35]

There is a delicate balance between individual rights and community concerns when considering the often emotional issue of pet ownership in shared living spaces like community schemes. As evidenced by various case laws and statutory regulations, trustees play a pivotal role in ensuring that the rights of pet owners are respected while maintaining harmony within the community. It is not a role that should be openly disregarded; it should be taken seriously. From considering the nature of the pet to evaluating potential nuisances, the decision-making process is multifaceted. As communities evolve and legal precedents are set, the governance of pet ownership in these shared spaces remains a dynamic and vital aspect of residential community management, underlining the importance of fairness, reasonableness, and mutual respect among residents.

 

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[1] Act 8 of 2011.

[2] Annexure 2 of the STSM, Regulations.

[3] Law for All, Keeping Pets in a Sectional Title Scheme, accessible at https://www.lawforall.co.za/homes-property/pets-in-a-sectional-title-scheme.

[4] Act 71 of 1962.

[5] 1999 (2) SA 512 (D).

[6] Laguna Ridge, 520. See also insights from D Gantana Fighting like cats and dogs over pets in flats? Miller Bosman Le Roux Attorneys, accessible at https://www.mblh.co.za/OurInsights/ArticleDetail.aspx?ArticleID=4750.

[7] Laguna Ridge, 520.

[8] Section 10(2)(b) of the STSMA.

[9] Circular on Amendment of Rules in terms of the STSMA, accessible at https://www.stsolutions.co.za/wp-content/uploads/2021/06/CSOS-Circular-No-1-of-2021-Amendment-of-Rules-ito-STSMA-6-May-21.pdf.

[10] Para 21 of Annexure A to the Circular on Amendment of Rules in terms of the STSMA.

[11] Para 21 of Annexure A to the Circular on Amendment of Rules in terms of the STSMA.

[12] Para 21 of Annexure A to the Circular on Amendment of Rules in terms of the STSMA.

[13] (58258/2013) [2014] ZAGPPHC 474 (7 July 2014), accessible at https://www.saflii.org/za/cases/ZAGPPHC/2014/474.pdf.

[14] Buffelsdrift paras 8, 13.

[15] Buffelsdrift para 23.3.

[16] (13422/2014; 5146/2016) [2018] ZAKZDHC 29 (26 March 2018), accessible at https://www.saflii.org/za/cases/ZAKZDHC/2018/29.html.

[17] Govender paras 1 to 3.

[18] Govender para 2.

[19] Govender paras 31(a) and (b).

[20] Govender paras 24 to 26.

[21] (7124/12) [2014] ZAKZDHC 36 (17 September 2014), accessible at https://www.saflii.org/za/cases/ZAKZDHC/2014/36.html.

[22] Abraham paras 39 and 56.

[23] CM Durham Permission to Keep Pets Paddocks Press, July 2014 (Volume 9, Issue 07), accessible at https://www.paddocks.co.za/paddocks-press-newsletter/permission-to-keep-pets/.

[24] Published Under Notice No 1334 in Gauteng Provincial Gazette No 135 Dated 10 April 2006, as amended by Notice No 1237 in Gauteng Provincial Gazette No 200 Dated 26 June 2019 and Notice No 1626 in Gauteng Provincial Gazette No 275 Dated 4 September 2019. Accessible at https://www.joburg.org.za/documents_/Documents/By-Laws/2020/40919%20Prom%20By-laws%20Dogs%20and%20Cats%20Amended%20260619%20and%2040919.pdf.

[25] Durham Permission to Keep Pets.

[26] Durham Permission to Keep Pets.

[27] Durham Permission to Keep Pets.

[28] Durham Permission to Keep Pets.

[29] Act 9 of 2011.

[30] Section 39 2(b) of the CSOS Act

[31] Section 39 2(c) of the CSOS Act.

[32] BusinessTech The dog and noise rules that South Africans living in complexes and estates should know about. Accessible at https://businesstech.co.za/news/property/583054/the-dog-and-noise-rules-that-south-africans-living-in-complexes-and-estates-should-know-about/.

[33] BusinessTech The dog and noise rules that South Africans living in complexes and estates should know about.

[34] BusinessTech The dog and noise rules that South Africans living in complexes and estates should know about.

[35] BusinessTech The dog and noise rules that South Africans living in complexes and estates should know about.

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