Take the example of an intrepid Estate Agent who has a mandate to sell in Barrington Mews, South of Johannesburg. On a random visit to the complex, he sees a few small dogs behind the fences, well contained and being of no harm to anyone. A cat sidles past him, minding its own business as cats are prone to do. We wouldn’t berate the agent for thinking that the complex is pet friendly, and for selling a unit on this basis. This is where the trouble starts. We do need to interrogate the professionalism of the agent, though, as there is consequential fallout if the proper information is not obtained in writing.

 The correct information can always be located in the Conduct Rules of your Sectional Title scheme, or alternatively in the Memorandum of Incorporation in your Homeowners’ Association.

If your rules in the former, have not been altered, then the default position is that in order to bring a pet into a scheme, an owner must obtain written permission from the Trustees, which permission can be conditional and which can be withdrawn at any time. The exact wording of the Rule which is Conduct Rule 1(1) states that: “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.”

The wording of this clause places an obligation on the Trustees to put their minds proactively to the facts, and to properly consider the separate circumstances of every case. They cannot brush over the situation, generalise, or make assumptions.

Take for example a current matter on my desk. My client, the proud new owner of a unit, moved in a month ago together with her pride and joy, an African Grey Parrot named Einstein. She diligently applied to the Trustees for permission to keep the bird. The Rules of the scheme make it clear that birds are allowed under the model rules as discussed above. Our client received a somewhat curt letter from the Managing Agent to say the Trustees had received several complaints from owners alleging that the parrot was creating a noise nuisance during the day, and that they only foresaw the problem getting worse. Consequently, permission was not granted, and alternative housing arrangements would have to be made for Einstein.

Now, Einstein had specifically been chosen by our client for his extreme intelligence and his ability to talk and mimic, which made him a captivating companion. Upon a survey by her of owners within hearing distance of her unit, she found that no complaints had been made, bar one. The complainant had a specific heightened hearing condition which rendered him more sensitive to noise than most. So, the Trustees have not in effect put their minds to the issue at all, and our client will retain her beloved parrot indefinitely.

“The law applies the ‘reasonable man’ test and will not take into account each individual’s subjective sensitivities.”

The law applies the “reasonable man” test and will not take into account each individual’s subjective sensitivities. The one exception to the law on Trustee approval relates to guide or assistance dogs. A welcome addition to the default conduct rule, states that Trustees are deemed to have approved these types of animals, and that consent does not need to be applied for.

If the Conduct Rules are amended by a special resolution of owners, there is nothing stopping the Body Corporate from implementing a “No Pets” rule. Owners can decide if they want pets, or indeed if they only want certain pets. One of my clients specifically excluded snakes after finding a poisonous Boomslang near the hot water installation of a Cape Town complex. What if this exclusionary rule is made, and there are already resident pets in the scheme? The only way to deal with this situation in my opinion is to record that the existent pets remain for the duration of their lives, with no new pets allowed in pursuant to the resolution.

Owners should make use of the rules when drafting the prerequisites for keeping pets. Large dogs on small pieces of land should only be allowed if they are walked regularly. It is cruel to keep certain breeds of dogs contained inside or on a tiny patio outside a section. In a recent arbitration hearing at the Community Schemes Ombud, the adjudicator heard how two bull terriers were removed by the trustees as they got into the most awful fights with each other, due to their frustration with being in a postage stamp garden without any stimulation or opportunities to be taken for a walk. There were substantial complaints from concerned owners. The owner argued that the SPCA had been called in and had found that the dogs had suffered no injuries.

“The adjudicator ruled that the dogs could stay, a ruling that I completely disagree with.”

 The adjudicator ruled that the dogs could stay, a ruling that I completely disagree with. In my view, the adjudicator was short sighted and displayed no insight whatsoever about animal behaviour and the nuisance created by these dogs and their obtuse owners.

If pets are allowed , it is incumbent on the rule drafters to ensure that there are clauses dealing with owner and occupier obligations to ensure that dog excrement is picked up regularly, and does not create a health hazard,  that dogs must be on leads when going for a walk, and that pets should be neutered or spayed .

If a picture could paint a thousand words it would be a shot of a large “Putco type” bus parking at my office carrying owners who all wanted to testify against a rather innocent looking Shar-Pei who was accused of a number of misdemeanours on common property. As the Arbitrator in that matter, I had no alternative but to order the removal of the dog, due to overwhelming evidence. The lesson learnt is never to underestimate the strong feelings flowing from both pet lovers and complainants for the removal of pets. The position of pets is undoubtedly the most emotive topic in Community Schemes, creating dissenting views.

Marina Constas

BBM Attorneys

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