Among the complaints that Home Owners Associations (HOA) receive are that cats are entering neighbours homes through open doors and windows, stealing food or accessing that property’s own pet food, sleeping on beds where a hair-sensitive or allergic resident sleeps even urinating on furnishings, and annoying attacks or fighting among cats, particularly during the night hours.
Purely speaking from a Sectional Title perspective is Cor van Deventer, Partner and Director at Van Deventer & Van Deventer Incorporated in the Property/Real Estate Department, who says that in most cases residential complexes are bound by the Sectional Titles Act (STA), and Municipal By-Laws which prescribe management and conduct rules relevant to pets.
“Conduct rules are lodged at the Deeds Office, and most apply the rule that ‘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 the common property’,” he says. “A further rule worth noting is that when the trustees grant approval for an owner to have a pet, the trustees may prescribe any ‘reasonable’ conditions. These rules must be registered at the Deeds Office, and any changes thereafter need to be updated at the Deeds Office.”
Assuming that a sectional title unit owner has been granted permission to have a cat or cats, when the Body Corporate receives a complaint about a them, they need to work strictly to the conduct rules, but these are generic and do not pertain specifically to cat behaviour. Unlike dogs, whose access to common property is usually limited or restricted to being on a leash, cats tend to randomly go where they wish, and this makes Body Corporate decision-making somewhat difficult.
By law, a complex cannot discriminate against cats specifically if it has made a decision that the estate is pet friendly. By way of example, a few years ago an owner of a sectional title unit was barred from acquiring a kitten, citing that cats were banned from the complex because of their roaming habits. All existing cats would be allowed but the Body Corporate would not consider new applications for cats. The resident took the case to the Community Schemes Ombud Service (CSOS), a regulatory authority that finds resolutions in disputes, which found in favour of the resident determining that the complex was discriminating not only against cats, but also against cat-loving owners in failing to treat cat lovers the same as dog lovers.
Fair enough, but how does one stop a cat entering a neighbour’s property, sitting on your car, or fighting with other cats in the complex, to the extent enough that a complaint is made? “Quite honestly there is not much a Body Corporate can do other than to refer back to the conduct rules, which will likely indicate that there is nothing that compels an owner to restrain their cat in their unit. The best one can hope for is that by approaching the owner of the cat, they will take measures to control the cat’s behaviour, but this is purely voluntary.”
Van Deventer points out that the trustees of the sectional title may decide to adjust their conduct rules at a sectional title (with quorum) meeting, to “include a requirement that the owner must clear up after their pet immediately if it messes on common property, and that the pet may not cause a nuisance to other owners or occupiers. If any ‘reasonable’ condition is breached, the trustees are entitled to withdraw their consent and the owner or occupier may be forced to remove the pet from the complex.”
The problem with these types of decisions, is the use of the word ‘reasonably’ in terms of the law. It would not be reasonable, for example, to say that an owner of a problem cat should get rid of the cat, but not apply the same rule to the owner of a dog that barks incessantly if the owner does not apply any measures to prevent this.
Van Deventer highlights, as a solution, the ‘grandfathering’ principle. “This means not taking rights away from those who have already invested in pets and have permission to keep them in their property, but once the ‘problem’ pet has died, the owner should not be entitled to replace them.”
This brings into play the consideration by some sectional title schemes to amend their rules 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,” says van Deventer. “But 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 prescribed rules and wants to adopt a ‘no pets’ rule as an amendment, this can only be done by the body corporate passing a special resolution amendment 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.”
A blanket prohibition on the keeping of any pets whatsoever, without provision for asking for consent, can be considered as presenting an element of “reasonableness” but as van Deventer points out, “it is remarkable is that the reasonableness/lawfulness/constitutionality has never been tested in a court of law and there is simply no precedent. 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.”
For cat owners who are approached with a complaint about their furry feline, it may be in your best interests to take measures to prohibit your cat from leaving your premises, at least at night, and if you are presented with positive and factual proof that your cat has caused damages, offer to pay compensation.
