You love your dogs and your cats, and you’re thinking of buying a unit in a sectional title scheme. Do the trustees have the right to tell you that your furry family can’t live with you?
Yup. They do. And you need to know if they do before you sign your offer to purchase.
According to Adam Civin and Ramon Pereira of Schindlers Attorneys, the important thing to remember when you’re buying into a sectional title scheme is that you are going to be contractually obliged to abide by the rules of the scheme.
“When purchasing a property in a sectional title scheme you are choosing to live in a high-density living environment,” they write in their article “Paws” before signing on the dotted line - body corporates and the keeping of pets in sectional titles. “Concomitantly, you are agreeing to curtail certain of your rights in order to ensure harmonious living with others in the high density environment.”
In other words - you understand that decisions made by the majority in the scheme may limit some of the choices that you might have made for yourself if you’d bought a freehold property.
Adam and Ramon pointed out, too, that South African law “does not recognise an unfettered approach to all rights and, in fact, recognises certain instances where it must be limited.” This would include instances where you’ve exercised your free will and placed yourself in a position where you agree to buy into a scheme that limits (or forbids) the type of pets you’re allowed to keep in your home.
REGULATIONS & REVIEW
The regulations of the Sectional Titles Act 95 of 1986 (as amended) provide a set of Prescribed Rules for sectional title schemes - and while every scheme is required to have these rules in place, Section 35 of the Act allows the board of trustees to register its own set of rules (within certain limits, of course).
And, interestingly, those rules can sometimes be challenged: Adam and Ramon considered a case in which an owner had been refused permission to keep a beloved pet - but who asked the court to require the trustees to review their decision (which it did).
“The Prescribed Conduct Rules ... regulated such permission and provided that no animals, except birds in cages, could be kept in the section, or the common property, unless expressly permitted by the trustees.”
In making its decision, “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.”
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.
“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,” wrote Adam and Ramon. “As such the court held the decision of a trustee is reviewable under the common law.”
