A client complained that her body corporate won’t allow her to keep a small dog in her unit, and asked me about her legal rights.
The first place to look is in the conduct rules of the complex. Annexure 9 of the Sectional Title Act states that the keeping of pets in a sectional title scheme is permitted, subject to the prior written consent of the trustees, who may not unreasonably withhold their consent. These rules also state that the trustees may impose any reasonable condition on keeping a pet (e.g. no large animals, cats must be neutered or spayed, etc.)
Our judges, who have heard pet cases, have found that trustees must view each request to keep a pet, objectively, and not dismiss any request out of hand, without fairly considering the circumstances of each case.
Unfortunately, if the conduct rules of a complex specifically provide that no pets are allowed, stand on her head, an owner has no right to complain and if she brings a pet onto her property, the body corporate may and will ask her to accommodate the pet elsewhere.
What if the rules permit the keeping of pets, subject to approval, and the trustees refuse to give their permission?
In the case of Body Corporate of the Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D), Dorse kept a Yorkshire Terrier dog, without necessary approval. The trustees told her to house the dog elsewhere. She refused so the trustees brought an application to court for an order that she remove the dog from her section. Dorse opposed the application and brought a counter application to review the decision of the trustees to refuse her permission to keep the dog, and for an order that she be allowed to keep the dog on condition of specific circumstances.
When considering the question of whether the decision of the trustees was open to review, the court had to bear in mind whether the trustees had genuinely applied their minds to the owner’s application for consent or had refused it purely as a hard and fast rule to refuse all such applications so not as to create a precedent of allowing residents to house dogs. When considering the trustees’ reasons for the refusal of the owner’s application the court found that the decisive factors in refusing same were namely –
- the general policy; and
- the issue of precedent.
With regard to the general policy the court held that by simply applying a general policy the trustees had not truly applied their minds to the owner’s application and had not genuinely considered departing from the general rule.
Furthermore, the court found that the question of precedent was not a relevant consideration and ought not to have influenced the trustees’ decision. If each decision by the trustees to grant or refuse such permissions was to be considered on its own merits that decision would not constitute a precedent because it would be a decision based on the facts and circumstances relevant to the particular case under consideration. A refusal to grant permission in a particular case simply because it would create a precedent would be tantamount to a failure to consider and decide the application on its own merits and would result in a refusal to depart from the general policy of not granting permission. As such the court held the decision of a trustee was reviewable under the common law.