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Monday Jun 11, 2018

Pets in sectional title schemes a thorny issue

Trying to keep your pet in a sectional title property when there are rules imposed by homeowners’ association trustees against this, is a problem often resolved only in court.

If trustees have followed due and reasonable process, and still withdrawn consent to keep a pet, the owner has to find a new home for their pet, says attorneys Heyns and Partners.

According to sectional title regulations:

  • An owners or occupier of a section shall not, without written consent of trustees, keep any animal, reptile or bird. Trustees have to be reasonable about not giving consent.

  • When granting such approval, trustees may prescribe any reasonable condition that will help create harmony in the group.

    The attorneys say these regulations exist to protect the pet owner from unreasonably strict rules, and give other owners the right to live in a nuisance-free environment.

    "This consideration, in granting or refusing consent, will be central to inquiry: will it unreasonably interfere with others’ rights to enjoy their units, and which conditions would be appropriate to ensure the risk of nuisance is reduced to a reasonable level?”

    An outright refusal to allow a pet may be considered unreasonable, and if trustees have no reasonable grounds to disallow the pet, the owner is entitled to take the matter to court.

    Actiona by the trustees to remove a “companion animal” or “service animal,” such as a guide dog is unlikely to be seen as reasonable in the absence of a clear nuisance caused by the animal, say Heyns and Partners.

    “The fact that a person sometimes forms an extremely strong emotional tie with their pet could also be an important consideration when the trustees decide whether or not to grant permission.”

    Cases where trustees may have reasonable reasons to disallow a pet is if the animal is a nuisance to other residents (such as barking consistently) or considered a danger. A body corporate is not entitled to forcibly remove a pet from an owner’s possession. This can only be achieved by a court order.

    Pet owners must follow all the rules

    Too many property owners have been irresponsible pet owners, causing a large number of body corporates to rule against pet ownership in residential estates and complexes.

    “To ensure this doesn’t become a more widespread restriction, homeowners must abide by laws set out by their local municipality, and not allow their bad habits to prevent responsible owners from keeping pets in their homes,” says Adrian Goslett, regional director and chief executive of Re/Max of Southern Africa.

    He looks at some laws and gives options for keeping your pet in a happy home:

    1 If your pet sleeps outside, provide adequate shelter. “Most kennels do not offer great protection against the elements. Building an awning and tucking the kennel into a corner underneath the roof adds extra protection. The addition also adds value to your home,” says Goslett.

    2 You cannot keep your pet tied up for extended periods, according to the Animal Protection Act of 1962. “If you like to keep your dog at bay when you have visitors, put up a fence that gives your pet enough space to run around while you and your guests gather on the other side.”

    3 There is a law that restricts the number of animals you are allowed to keep according to the type of property you own. Each region has its own by-laws , but most subscribe to these restrictions for dogs over six months old:

  • Sectional title: A maximum of two dogs.

  • Free-standing property: Three dogs.

  • Property on a plot exceeding 600m2: Four dogs.

  • Agricultural property: Six dogs.

  • Cats: no more than four on any residential property, and no more than six on an agricultural property.

    If you want pets other than cats, dogs, fish, birds and rodents in a residential area, you need a permit from the relevant local authority.

    When the trustees became barking mad

    Some previoius court cases include:

  • The trustees of Laguna Ridge, a sectional title development, had a general policy of denying applications for pet ownership as they felt the property – 18 storeys with 65 flats – was unsuitable for pets.

    The owner of a miniature Yorkshire Terrier applied for permission to keep her pet, which did not cause a nuisance to anyone.

    The trustees still denied it. The case was taken to court, where it was found the denial was unreasonable. The owner was granted permission by the court to keep her dog subject to certain conditions.

  • In a 2013 case, the Buffelsdrift Game Reserve Owners Association applied for a court interdict to oblige owners who had dogs and cats – some for up to eight years – to remove them.

    The court dismissed the application with costs, stating the association did not prove adequate harm or injury should the order not be granted.

  • The owners of a Saint Bernard puppy were locked in battle with the Mount Edgecombe Country Club Estate Management Association.

    Association rules limited the size of dogs to no more than 20kg. The court ordered against the applicants and gave the owners three months to remove the dog.

    Property
    Weekend Argus (Saturday Edition)

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