To most of us, our pets are part of the family and we cannot imagine life without them by our side. What happens though when we seek to move house into a sectional title scheme or live there, but want to grow the family through the addition of a furry or feathered family member?
The rules for keeping pets in a sectional title scheme are governed by the Prescribed Conduct Rule (PCR) 1 of the Sectional Title Schemes Management Act.
The PCR 1 stipulates that no occupant of a sectional title scheme may keep a pet without the written consent of the trustee. Permission to keep a pet in a sectional title scheme must not be unreasonably withheld and such an unreasonable refusal of consent is subject to judicial review.
Animals, reptiles and birds are all classified as pets.
An occupier suffering from a disability and who is in need of a guide, hearing or service dog must be considered to have the trustees’ consent to keep such an animal in a section and to accompany it on the common property.
The trustees have the right to stipulate any reasonable condition regarding the keeping of pets in a sectional title or on the common property.
The trustees have the right to withdraw consent if the occupier is in breach of any condition imposed by the trustees.
Trustees should take care when granting an owner or occupier permission to keep a pet and should not be hasty nor unreasonable in their decision. A number of court cases have dealt with decisions reached arbitrarily by trustees to refuse consent for pets to be housed and a number of these arbitrary refusals have been reviewed by our courts.
In the same breath, trustees should take care when withdrawing consent to keep a pet in a sectional title by making sure they adhere to the protocol regarding withdrawal of consent.
Keeping pets in a sectional title is not a right and is only allowed on special application to the body corporate.
Therefore, should the owner of the pet be in breach of any of the reasonable conditions stipulated by the trustees, the trustees are in their right to withdraw such consent.
The withdrawal of consent can only be done under the following reasonable circumstances:
1. The pet is causing a disturbance of peace to other occupiers by excessive barking
2. The owner is not meeting the prescribed conditions. For example, keeping more than the agreed number of pets (3 instead of just 1)
3. The pet is considered as dangerous to occupiers. For example, where a dog bites a child or another dog or has displayed aggressive behaviour.
Before officially withdrawing their consent, trustees must ensure that they make themselves aware of all the circumstances related to the breach.
Furthermore, the trustees must give the owner or occupier a reasonable opportunity to present their case.
In addition, the owner must be given the following:
1. A notice of the breach
2. A reasonable opportunity to remedy the situation
3. A hearing where evidence of the breach is given
The decision to withdraw consent must be made by majority vote and the decision must be minuted.
The owner or occupier must then be given written notice of the withdrawal and a reasonable amount of time to remove the pet from the premises.
Once the decision has been made to withdraw consent following the correct process, the owner of the pet is no longer entitled to carry on keeping that pet.
However, the body corporate is not allowed to forcibly remove a pet from any person’s possession.
In a case where an owner refuses to remove the pet from the premises, the trustees will have to obtain an adjudication order from the Community Schemes Ombud Service (CSOS) for the removal of the pet.
Section 38 of the CSOS Act states that any person can make an application to the CSOS if they are affected by a dispute.
Therefore, the body corporate can make an application to the CSOS which declares a dispute against the owner who has continued to keep the pet in the scheme regardless of the withdrawal of consent.
The application must include statements stating the following:
1. The name and address of each person the applicant considers to be affected by the dispute
2. The grounds on which the applicant seeks relief
3. The nature of relief which the applicant seeks, such relief must be within the scope of one or more of the prayers for relief provided for in section 39 of the CSOS Act.
The following are considered prayers for relief as stipulated in section 39 of the CSOS Act:
If satisfied that an animal is kept in a private area or on common areas is causing a nuisance or a hazard or is unduly interfering with someone else’s peaceful use of his or her private area or common area, an order requiring the owner of the pet to:
1. Take specified action to remedy the nuisance, hazard or interference; or
2. Remove the animal in question from the premises
3. An order declaring that an animal is being kept in a community scheme contrary to the scheme governance documentation and requiring the owner or occupier in charge of the animal to remove it.
Navigating the minefield of sectional title regulations can be tricky and accordingly it is important to obtain professional advice should you be in any doubt.