Beware, Corporate Body Bullies!
Compiled by Derek du Toit - Hopeful Foundation
( For full version click here)
( For full version click here)
Beware, Corporate Body Bullies!
In recent times, there has been a development in policies of residential complexes and retirement homes that has had a significant effect on many people’s relationships with their companion animals. In many cases the tactics employed by Corporate Body Bullies are underhanded, illogical and prejudicial.
This document will give people a cleat understanding of the variables involved and some strategies for dealing with these dubious tactics.
Firstly one needs to establish whether the scheme within which one resides is a sectional title scheme, a homeowners association or possibly even, the now outdated, shareblock scheme, as each of these have specific laws, rules and regulations.
In most cases, residential complexes are bound by the Sectional Titles Act. In addition, Municipal By-Laws will apply, and it’s a good idea to have an understanding of both before deciding to buy or rent in a given complex.
Sectional title schemes are established under the Sectional Titles Act of 1986, as amended, and within this Act are prescribed management and conduct rules, the latter of which [annexure 9 of the Act] deals with pets.
The Sectional Titles Act (ST) includes the following clauses relevant to this discussion:
35 (3) Any management or conduct rule made by a developer or a body corporate shall be reasonable, and shall apply equally to all owners of units put to substantially the same purpose.
35 (5) (a) If the rules… …are substituted, added to, amended or repealed, the body corporate shall lodge with the registrar a notification in the prescribed form of such substitution, addition to, amendment or repeal.
35 (5) (c) A substitution, addition, amendment or repeal contemplated in paragraph (a) shall come into operation on the date of filing of the notification referred to in that paragraph.
1. Animals, reptiles and birds
(1) An owner or occupier of a section shall not, without the consent in writing of the trustees, which approval may not unreasonably be withheld, keep any animal, reptile or bird in a section or on the common property.
(2) When granting such approval, the trustees may prescribe any reasonable condition.
(3) The trustees may withdraw such approval in the event of any breach of any condition prescribed in terms of sub-rule (2).
Such Conduct Rules may be changed, but only if a resolution is passed by a BC quorum that will be stipulated in the Rules themselves.
These rules are not made on a whim and once clarified, have to be registered at the Deeds Office. The rules may not be amended or changed without a special resolution and any changes also have to be registered with the Deeds Office. This essentially means that bodies corporate may not change the rules governing the complex indiscriminately to suit certain owners or individuals.
The very first of the prescribed conduct rules for ST schemes states that no owner or occupier of a section is allowed to keep an animal, bird or reptile without the written consent of the trustees.. In other words, the 'no pets' rule is actually the default position for ST schemes.
However, conduct rule number one also says that the trustees may not unreasonably withhold their approval if an owner or tenant applies to them for permission to keep a pet - although they can impose conditions under which that pet must be kept, and can change their minds if these are not met.
On the other hand, the conduct rules pertaining to a particular ST scheme can be altered from the standard rules, either by the developer before establishment of the scheme, or more usually by the body corporate of the scheme after establishment.
Provided these new rules are filed with the Registrar of Deeds, they are the ones that all owners and tenants in that ST scheme have to follow - which is how it is possible for some schemes to have an absolute 'no pets' policy. It is therefore very important for prospective buyers who would like to keep a pet to find out what the situation is before they commit to a purchase in any particular scheme.
But if the sectional title complex they like has an amended rule that bans all or certain types of pets, or imposes a limit on the number of pets that an owner may keep, the trustees will have no choice but to follow that rule - no matter what they might privately think of a pet-lover's pleas to bend it.
In simple terms the onus is on the owner or occupier to apply for written consent from the trustees to keep a pet, prior to bringing the pet onto the property.
Yes, it is true, that the trustees cannot unreasonably withhold permission, but reasonable is relative and pets are an emotive issue!
Often pets are brought on to the property illegally, i.e. without the trustees' prior written consent, and then prospective purchasers or tenants and/or their agents, see these pets and assume that the scheme is pet friendly, which is not the case.
You can argue the 'reasonableness' should consent be withheld, but once you move in with the pet, you already, in most cases, in breach of the rules and place yourself in a more difficult position.
If you were informed of the rules of the complex when you moved in, the BC are acting in their right to say that you should remove one dog (immediately). They do however have to follow protocol in doing so.
If however this is a "new" arrangement i.e. they had an AGM and the trustees decided that instead of 3 animals, all owners are only allowed 2 animals. They have no right to say that you need to get rid of your dog.
They should wait until the dog passes away and then you will not be able to replace it.
The BC are also not allowed to give you an unreasonable ultimatum - you should have received a letter in the lines of "It has come to our attention that your dog (the big one who looks like a boerboel) is posing to be a nuisance as he is barking non-stop. In the BC rules it states that should your dog be a nuisance you will be asked to remove the pet from the premises within 7 days. Please try to ensure that your pets are not a nuisance to other residents.”
With them just saying remove a pet (not being specific) – you could be removing the pet who is not causing a nuisance.
1. They are supposed to give you a chance to rectify the problem. (Stop the barking)
2. They should be specific about which dog is being the nuisance
3. The burden of proof is upon the complainant, who must produce evidence that the dog(s) are a nuisance.
If they were following the correct procedures you should have received at least 3 (warning) letters and then a letter stating that your dog will be removed from the premises within 7 days – and this should also then be followed up by lawyers letters.
The point of course is this blanket insistence on "one dog per property". Any blanket view taken by trustees/agents is an improper exercise of discretion. There are any number of studies showing that dogs on their own (i.e. away from the pack, human or canine) are genetically hot-wired to panic and start barking, either out of boredom, or separation anxiety or in an attempt to "summon the pack". Most of these problems can be eliminated by having two or more dogs.
Owners who think the trustees have unreasonably withheld their consent may apply to court for declaratory orders that the trustees’ consent has been unreasonably withheld.
This happened in the case Body Corporate of the Laguna Ridge Scheme No 152/1987 v Dorse 1999 2 SA 512 (D) which dealt with the interpretation and application of PCR 1 (Prescribed Conduct Rule 1). A woman was refused permission to keep her dog in her flat and she challenged the trustees’ refusal by taking them to court. The court held that each request for permission to keep an animal had to be considered on its own merits and the decision of the trustees had to be based on the facts and circumstances relevant to the particular case. The restriction on the keeping of animals was designed to avoid the causing of a nuisance to the other occupants in the building and the fact that permission was refused despite the fact that the woman’s dog did not bark and was never allowed to roam on the common property meant that the trustees had not adequately applied their minds to the matter. In the end the court substituted the trustees’ decision with its own and allowed the woman to keep her pet in her flat.
If the trustees decide to allow a particular owner or occupier to keep a pet, they are entitled to impose reasonable conditions attaching to the consent. Reasonable conditions could include a requirement that the owner must clean up after their pet immediately if it messes on the common property, that the pet may not cause a nuisance to other owners or occupiers, and that the pet is not to be on the common property unless it is on a lead. If any reasonable condition is breached, the trustees will then be entitled to withdraw their consent and the owner or occupier may be forced to remove the pet from the complex.
Some schemes have amended the prescribed rules and now have a rule that no pets are allowed in the scheme whatsoever. This absolute prohibition on the keeping of pets could be argued to be an unjustifiable infringement on a person’s right of ownership. Then again, if the rule was in place and filed at the Deeds Registry before the owner bought into the scheme, the legal principle caveat emptor (let the buyer beware) comes into play as the buyer is presumed to have knowledge of the rules applicable to the scheme.
If a scheme has the prescribed rules and wants to adopt a “no pets” rule as an amendment to PCR 1, this could only be done by the body corporate passing a special resolution amending PCR 1 and having this filed at the Deeds Registry. But because all rules must be reasonable, the new rule must take into consideration the vested rights of owners who already have pets at the scheme.
The ‘grandfathering’ principle is appropriate here. This means not taking rights away from those in whom they are already vested. That is, you should not make those who have pets get rid of them, but once those pets die they should not be entitled to replace them. Jennifer Paddock
If one has regard to a blanket prohibition on the keeping of any pets whatsoever, without provision for asking for consent, the element of “reasonableness as which is required by The STA, provision for exceptional circumstances such as the need by an occupant/owner for a blind dog, and also leads to the inequitable scenario where for example where an owner or occupier may not keep pets such as an iguana, a hamster in a cage, a snake in a cage, or even a bird in a cage, as well as fish in a fish tank or coy pond, none of which are capable of creating any nuisance to other occupiers or owners.
What’s even more remarkable is that the reasonableness/lawfulness/constitutionality has never been tested in a court of law and there is simply no precedent as the closest case law is the Dorse matter where the rule was not a blanket prohibition but had provision for the asking of permission which the court found to have been unreasonably withheld and ruled in favour of the owner/occupier.
The lack of certainty surrounding this issue lays the foundation for unnecessary friction between Trustees and owners/occupiers and there is presently only speculation and conjecture on the part of experts in this field.
Managing Agent ‘rules’
The managing agents all copy each other's "bright" ideas in the quest to attract clients. They get away with it in the big developments because a lot of the owners are absentee investor owners, only interested in the rent, and unlikely to want to spend money fighting for something that doesn't affect them. Tenants, who have to rent rather than buy, usually don't have the money to litigate.
If it starts getting known in the industry that the rules are invalid and expose trustees to breach of fiduciary duty claims, and the rules are challenged regularly enough, maybe they will back down and stop using them.
Bottom line: the rules are an unlawful attempt to divert to managing agents the powers/duty of:
1. Trustees to consider each and every pet request, judge it on its merit and impose reasonable conditions, AND
2. Sectional title owners, to the extent that the rules ban pets generally or in respect of certain units (a blanket ban requires the conduct rules to be amended by special resolution).
A special resolution to amend the conduct rules (to exclude pets) can only be passed at the AGM when it rolls around, or at a special meeting of owners called for that purpose. What people forget is that a special meeting can only be called (per Sectional Titles Act) by at least 25% of the owners. So managing agents/trustees cannot get a bright idea and send out a notice for the special meeting. They need at least 25% of owners to be on board just to call the meeting.
If an owner is faced with such a proposed resolution and is panicking because she/he knows that the rest of the owners (more than 75%) are a bunch of pet-hating psychopaths who will bulldoze through the vote, there is a very obscure section in the Sectional Titles Act that provides that any proposed amendment to conduct or management rules that seeks to impact negatively on proprietary interests of owners must be a UNANIMOUS vote (not just 75%). I would argue that the exclusion of the right to have pets in my unit reduces the pool of potential buyers I could eventually sell to, thus reducing the market value of my unit, so such a vote would have to be unanimous.
Forcing potential tenants to be interviewed by the trustees to see if they are suitable candidates for the complex is an absolute no no. No one except the owner has the right to say who may and who may not occupy a unit.
The owner has the right to have pets with the permission of the trustees and on the written conditions they may impose. However, any “pet application form” is ultra vires, in my view, the powers of the trustees. Firstly, the trustees cannot delegate that power to managing agents and also cannot incorporate “by reference” estate agents’ rules (they may change from time to time – I have also never heard of “estate agents’ rules – one agent’s recommendations are hardly industry wide). Also, in exercising their power to permit or refuse a pet, or the conditions thereto, the trustees have to act reasonably and exercise their discretion properly in each and every case. In my view, the trustees are incorrect (to the extent that they approved the application form as follows:
A blanket refusal to allow pets on the upper floors is not a proper exercise of discretion in each case – for example, what if the pet is old and just sleeps all day without needing to go out?
Similarly, a blanket restriction on one pet is also not a proper exercise of discretion in each and every case – again, what if pets are small or old?
The revoking of permission within 24 hours for reason of “disturbance” is also not reasonable – what is a “disturbance”? One bark, two? 16 barks per hour?
The restriction as to height is also arbitrary. We all know a dog’s capacity to be a nuisance is based on energy levels, not size. A beagle is far more likely to cause a disturbance than a laid-back greyhound or Great Dane.
Having said all of this, however, the owner must be the one to refuse to be bound by the “pet application form” – the tenant has no say in law.
Recently advocate Elizabeth Nieuwoudt, a member of CatPals, took on a case regarding cats in a sectional title complex and won. Some very clear rules and principles crystallised in the process, and Elizabeth has kindly agreed to share these with us. They are the following:
1. If a complex has a notice board at its gate proclaiming that animals are prohibited, or if its constitution or bylaws contains a rule prohibiting animals, no one with pets should move there or buy a unit there. You will not be able to change that rule. However, if there is a general rule permitting animals, permission to keep pets may not unreasonably be withheld from you.
2. Before renting or buying in a complex, ask to be shown its constitution and bylaws before making your decision. If they are reluctant, reconsider living there.
3. NB: If a complex permitted animals when you moved in, it cannot force you to get rid of your animals, even if the rules are changed by majority vote and animals are no longer permitted.
4. In the circumstances outlined in (3) above, you will not be able to bring in new animals, notwithstanding the fact that you had permission to keep animals when you first moved in.
5. Rules regarding the keeping of animals cannot be changed retrospectively, in other words, they cannot come into effect at some date in the past. Such rules can only be effective from the day on which they are made.
6. If, whilst you are living in a complex where your animals are permitted or were permitted when you moved in, you are challenged by the body corporate, its chairman, the caretaker or any other individual because your animals are "causing a problem", each case should be considered on merit. There is no blanket precedent ruling with regard to "nuisance" animals. Determine in advance what “nuisance” means in that particular complex before you commit yourself to moving there.
7. If you are dealing directly with the owner of a unit, make absolutely sure of your position. The owner cannot grant permission conflicting with the complex’s rules. If you do obtain such permission, get it in writing.
8. A complex may not discriminate by granting permission to keep only cats, dogs, birds etc. This is regarded as discrimination against you as a person and your constitutional rights.
9. It is absolutely imperative that you know your rights. To this end, ensure that you study a copy of the constitution, the bylaws (normally the house rules), and any other rules, especially if they are relevant to meetings or the powers of the body corporate. You must know specifically who has the right to vote at an annual general meeting, what constitutes a quorum for such a meeting, and whether 2/3 of the voters are required to have a previous decision amended or overturned. This latter point is the normal procedure at most meetings.
10. The body corporate has no powers whatsoever, except those conferred upon it by majority vote at a correctly constituted annual general meeting. "Correctly constituted" means sufficient notice had to have been given, a quorum had to have been present at all times, and a majority had to have voted in favour of or against a proposal. The minutes also need to reflect the exact wording of the matters that were voted on and the outcome of the vote.
11. Some estate agents are not truthful about matters such as pets, because they want the deal done. Verify your facts.
12. Keep emotion out of all negotiations. It has no persuasive power in a court of law.
13. There is no law compelling a complex to register in the deeds office whether or not it permits animals. It is however sound practice to do so, to enable a prospective buyer to examine the actual wording of the rule.
14. Lastly, but most importantly: Before you sign anything and move in, get the e-mail address of the chairman of the body corporate. Write to this person, confirming your verbal enquiry in regard to your “animal rights” and specifically what "nuisance" is understood to mean in that particular complex. Courts base their decisions on facts, law and evidence. Keep your letter to the chairman short, to the point and absolutely devoid of any emotion. If you do not get a reply, follow up within a reasonable time. If this person runs into you and replies to your query verbally, immediately follow up with an e-mail, confirming your understanding of what was said. (In the court case advocate Nieuwoudt recently won, her case was strengthened by such a complete written record of events. According to her, there may well have been a different outcome without it.)
Compiled by Derek du Toit
Full version here: http://hopeful.ws/2013/01/25/beware-corporate-body-bullies/
With thanks to
Leigh de Souza (Attorney)
Claire von Zuylen (Attorney)
Elizabeth Nieuwoudt (Advocate)
Sam Niselow (Attorney)
Lea Jacobs (Attorney)
Jennifer Paddock (Attorney)
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