Introduction
written by Kristin Meikle
This article briefly considers the friction between prevailing precedent, the Body Corporate of the Laguna Ridge Scheme No152/1987 v Dorse 1999 (2) SA 512 (D) judgment (Laguna Ridge), and the default position and misguided line of reasoning held by numerous Bodies Corporate and, seemingly, the Community Schemes Ombud Service (CSOS), with regard to the owning and keeping of a pet in a Sectional Title Scheme.
Legislative & Case Law Overview
South Africa’s sectional title space is governed by three separate pieces of legislation, and concomitant regulations issued in terms thereof, namely:
(i) The Sectional Titles Act No. 95 of 1986 (the STA) – enacted to provide for the development, division, and acquisition of sectional title schemes, and consequently finding little relevance in this article; (ii) The Sectional Titles Schemes Management Act No. 8 of 2011 (the STSMA) – which governs,
inter alia, the establishment and regulation of bodies corporate and the rules applicable to sectional title schemes, and; (iii) The Community Schemes Ombud Service Act No. 9 of 2011 (the CSOSA) – which provides for the establishment, mandate, and functions of the CSOS.
The Management and Conduct Rules of a body corporate are contemplated under Section 10 of the STSMA, and the relief which may be sought relative to transgressions of these rules fall under the comprehensive ambit of Section 39 of the CSOSA. Specific reference is to be made to Section 39(2)(a) – (d) of the CSOSA that deals with behavioural transgressions relative to the keeping of an animal that causes a “nuisance or a hazard or is unduly interfering with someone else’s peaceful use and enjoyment” of his/her exclusive use areas or the common property. According to Mccall J, in the Laguna Ridge judgment, the question of what constitutes a nuisance, hazard or undue interference is to be considered on a case by case basis, having due regard to the relevant facts and circumstances in each case.[1] To this end, there can’t be a one-size-fits-all rule, or an exhaustive list of considerations as to what constitutes a nuisance, hazard, or undue interference caused by the keeping of a pet. Rather, the Laguna Ridge judgment says that Section 10(3) and 10(5)(b) of the STSMA should be considered in the context of “reasonableness” and “equal application”, as the criteria against which the invalidity of a restrictive pet rule may be founded (the Reasonableness and Equal Application Criteria).
To this end, the key points raised in the Laguna Ridge judgment are as follows:
- Although the Trustees of the body corporate are vested with a discretion to grant or refuse permission to owners and/or occupiers to keep a pet, in accordance with the body corporate rules, this discretion is not unfettered. The Trustees also cannot maintain a default position, policy or rule that fails to consider, inter alia, the nature, size, and temperament of a pet when reaching a conclusion as to such pet’s retention by the owner and/or occupier within the sectional title scheme. Trustees are required to apply their minds to the merits of each request to keep a pet in a sectional title scheme and cannot rely solely on a “No-Pet” paragraph in the body corporate rules to found their refusal of permission to keep a pet.[2]
- In instances where the Trustees have unreasonably refused to grant permission to an owner and/or occupier to keep a pet, or where the application of a restrictive no pet rule is applied exclusively to one such owner and/or tenant, it is a foregone conclusion that the Trustees have failed to adhere to the Reasonableness and Equal Application Criteria.[3] Moreover, an owner and/or occupier would be unjustifiably prejudiced from exercising his/her real property rights and ordinary incidents thereto, such as pet ownership, if the matter was referred back to the Trustees for consideration in these instances. As such, it is better for the Court to grant an order with a substituted decision with regard to the keeping of a pet in a sectional title scheme.[4]
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Misguided Rules and CSOS Adjudication Orders
Annexures 1 and 2 of the Regulations to the STSMA provide “Prescribed Rules” for the Management and Conduct of the body corporate respectively.[5] Annexure 2, being the Prescribed Conduct Rules, may be substituted, added to, amended, or withdrawn by the developer of the sectional title before registration or by way of a unanimous or special resolution of the body corporate, after registration of the sectional title scheme and on the establishment of the body corporate and with approval of the Chief Ombud of the CSOS.[6] Conduct rules which are in contravention of Section 10 of the STSMA may be found to be invalid upon adjudication at the CSOS, alternatively on appeal in the High Court.
Furthermore, due consideration must be had to the prevailing and overarching case law precedent, being the Laguna Ridge judgment, when substituting, adding to, amending, or withdrawing conduct rules pertaining to keeping a pet in a sectional title scheme. Although the judgment was passed in 1999, its application is still relevant, country-wide, and a CSOS Adjudicator is bound by its authority.
A recent CSOS adjudication, in the case of Van Niekerk v Ireland Gardens BC CSOS 736/GP/2017, reveals a misguided approach by the CSOS regarding the keeping of pets in a sectional title scheme. The Adjudicator found that a “No-Pet Rule”, of general application, would be acceptable in lieu of a “No-Cat Rule” or a “No-Dog Rule” as the latter discriminates against certain types of pet owners, therefore rendering it unreasonable and of unequal application.[7] Both the line of reasoning and conclusion of this adjudicator is unsound as it in essence advocates for larger classes or categories of property owners to be discriminated against – as opposed to removing the discrimination against pet owners in totality. To this end, it has been contended by leading sectional title academics, that such a finding is flawed, in that it is tantamount to a complete prohibition on the exercise of the ordinary incidents of property ownership, such as the use and enjoyment of one’s private section in a sectional title scheme.
Moreover, the inclusion of an outright one-size-fits-all prohibition rule on the keeping of pets within a sectional title scheme’s conduct rules is contrary to the STSMA and the Regulations thereto, particularly the model conduct rules, and also in light of the Court’s findings in the Laguna Ridge [8]
Conclusion
Living in a sectional title scheme requires the body corporate to be fair in its consideration of the rights and interests of each individual member and occupier, and to ensure peaceful co-existence, i.e., no hazard, nuisance, or undue interference of the use and enjoyment of each owner and/or occupiers rights.
This balance is only possible where the conduct rules are reasonable and of equal application to all members of the body corporate across the spectrum of lawful limitations a sectional title owner is subject to. It is evident that the rights and obligations of a sectional title owner and a free-standing property owner differ and that sectional title owners, by virtue of the nature of residential property bought, are subject to reasonable and lawful limitations of and to the ordinary incidents of property ownership. However, these limitations can in no instance espouse discriminatory rules.
Provision 1 of Annexure 2 of the Regulations to the STSMA specifically provides that the permission to “keep an animal, reptile and bird” within a sectional title may not be unreasonably withheld and no unreasonable condition may be imposed on such animal’s owner in respect of the keeping of such animal. To this end, if the Trustees of a body corporate and/or the CSOS Adjudicators stray away from the Prescribed Conduct Rules, disregard precedent, and legislation, and/or willfully neglect to consider the facts, circumstances, and rights of a member or occupier in the body corporate, whether that of a current or incoming owner of a sectional title, costly litigation may ensue and it may well be difficult to restore the status quo and amicable living within the sectional title scheme.
[1] Body Corporate of the Laguna Ridge Scheme No152/1987 v Dorse 1999 (2) SA 512 (D) (hereinafter “Laguna Ridge Scheme”) at 520G-H.
[2] Laguna Ridge Scheme at 520I.
[3] Laguna Ridge Scheme at 522G-I
[4] Ibid.
[5] Prof CG van der Merwe (1998) Sectional Titles, Share Block and Time-sharing (1998), Volume 1, ‘Sectional Titles’, Chapter 13.3, Page 13-8, “Types of Rules”, South Africa: LexisNexis.
[6] Prof CG van der Merwe (1998) Sectional Titles, Share Block and Time-sharing (1998), Volume 1, ‘Sectional Titles’, Chapter 13.5, Page 13-22 “Restrictions on the power of the developer or the sectional owners to enact special rules”, South Africa: LexisNexis.
[7] Van Niekerk v Ireland Garden BC CSOS 736/GP/2017 at Paras 26 – 39.
[8] Prof CG van der Merwe ‘Is a scheme rule prohibiting the keeping of animals in a sectional title scheme invalid? Lessons from the landmark decision of the New South Wales court of appeal’ (2021) 3 Journal of South African Law at 467 – 468.
