Written for Property Poser
A reader, whose permission to own a pet in a sectional title complex has been overturned, has approached our Property Poser panel of experts.
He writes that he moved into the complex three years ago with permission from the developers to bring along pets.
At the first meeting of the body corporate, permission was granted to tenants in general to keep pets within the complex, provided they remained in a contained area.
Our reader, who owns two cats and a small dog, has access to an exclusive use area that has been fenced off for the purpose of keeping the animals contained.
When one of the other residents recently applied for permission to keep a pet, the request was denied by the trustees.
Subsequently our reader has also been asked by the trustees to apply in writing and it seems they have now instructed the managing agent to demand that his animals be removed.
Charlotte Vermaak from Chas Everitt in Port Elizabeth says it appears that the usual conduct rules are applicable to the complex. “These provide that permission may be granted to keep animals and that such permission will depend on individual circumstances and not be withheld unreasonably.”
Vermaak says the trustees can change any of the rules of conduct by means of a special resolution at a general meeting. “Such resolution is passed by way of a majority vote of not less than 75% of the members of a body corporate.”
Vermaak says at least 30 days’ written notice of such general meeting, specifying the proposed resolution, is required.
A resolution can also be agreed to in writing by at least 75% of the members of a body corporate (personally, by proxy or by a representative recognised by law), according to Vermaak.
“Even if the rules have in fact been changed,” says Justin Strömbeck from Du Toit Strömbeck Attorneys in Port Elizabeth, “it is unusual to also take away the rights of existing pet owners.”
Strömbeck says rules cannot be changed to effect retrospectively, and there is also the so-called ‘grandfathering principle’ that allows pet owners to keep their pets, but not acquire new ones.
“The trustees are obliged to consider each request on its merits and to base their decisions on the circumstances. They may not refuse permission on the basis that they do not wish to create a precedent.”
Strömbeck says this principle has been confirmed by a court decision where similar circumstances as that of our reader applied.
“If the reader is not satisfied and a dispute is declared which cannot be resolved with the application of the rules of the scheme, the matter must be determined by way of arbitration.”
The reader will also have the option of approaching a court, according to Strömbeck.
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