‘Paws’ before signing on the dotted line

February 1st, 2015

Body corporates and the keeping of pets in sectional titles

By Adam Civin and Ramon Pereira

Recent research by Global Research company, Euromonitor, estimates that over nine million dogs are kept as pets in South Africa. Dogs are kept for many reasons, including companionship, exercise and protection. (Roberto A. Ferdman and Christopher Ingraham ‘South Africa is a dog country29-8-2014 IOL Online www.iol.co.za, accessed 10-1-2015.)

This article seeks to explain how South African courts have interpreted applications by owners to keep a pet within a sectional title scheme.

How the courts have addressed this issue

In the case of Body Corporate of the Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D), the respondent was the owner of a section within a sectional title scheme. Within her section she kept a Yorkshire Terrier dog. The respondent had not sought permission from the trustees of the applicant to keep the dog on the premises and had subsequently been requested to house the dog elsewhere.

The Prescribed Conduct Rules (annexure 9) as contained in the Sectional Titles Act 95 of 1986 (the Act) 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.

The owner’s request to keep her dog in her section had been considered by the trustees and was subsequently refused, resulting in her being told to find alternative accommodation for the dog. The owner failed to do same, resulting in the trustees bringing an application for an order that the owner remove the dog from her section. The owner 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.

Can the trustee’s decision be reviewed?

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 is reviewable under the common law.

Decision by the court

The decision of the trustees to refuse the owner’s application to keep her dog in her unit was set aside.

The owner was given leave to keep her dog in her unit on the following conditions –

• the dog must be confined to the unit and at no time may be allowed to walk on the common property;

• when the dog leaves the unit it must be carried;

• the dog shall not be allowed to constitute a nuisance to other residents; and

• the owner shall not replace the dog with another pet when it dies, save with prior written consent by the trustees.

What if the body corporate register their own rules prescribing instances where pets can be allowed?

It is important to note that the above refers to the factual scenario where the Prescribed Conduct Rules are applicable. Interestingly, our law considers these rules to be contractual in nature and you agree to same when an owner purchases a property within a sectional title scheme. In terms of the Act a body corporate may elect to amend, remove or add to these rules as they see fit. In order to do so a special resolution must be passed and in essence indicates that the majority of owners wish to have certain rules binding them as a body corporate namely, a further consensus between the owners is required.

This raises the question that where a body corporate has registered its own conduct rules, in terms of s 35 of the Act, replacing the prescribed conduct rules contained in the Act which, for example, states that no applications to have pets at the section will be considered if the pet exceeds the height restriction of 70cm. In this instance it is clear that the body corporate intended to limit the considerations trustees must take cognisance of when applying their minds to the application to have a pet in their section but if the trustees apply the rule as a ‘hard and fast’ rule then they could potentially be in violation of the above case.

In our opinion, when an owner purchases a unit within the complex the purchaser is then contractually bound by the registered conduct rules of that sectional title scheme and thus the purchaser agreed that if the minimum requirements for an application to keep a dog were not met then her application should fail. Importantly, the height restriction is a prescribed consideration that the trustees must take cognisance of and does not prevent the trustees from taking a number of other considerations in mind as well. When the purchaser bought into the sectional title scheme they agreed that this should be a prescribed consideration and that if they fall foul thereof they will not be able to have the pet they desire at the premises.


When purchasing a property in a sectional title scheme you are choosing to live in a high-density living environment. Concomitantly, you are agreeing to curtail certain of your rights in order to ensure harmonious living with others in the high density environment. Furthermore, you are agreeing to allow, in certain instances, the majority in that environment to limit certain of your choices you otherwise would have had if you had purchased a freehold property. Importantly, our law does not recognise an unfettered approach to all rights and, in fact, recognises certain instances where it must be limited. One of those instances will be where you have exercised free will and elected to be placed in that position on your own volition, such as purchasing a property in a sectional title scheme, which limits the type of pets you may have at that premises.

Adam Civin BA LLB (UP) is a candidate attorney and Ramon Pereira MSc LLB (UCT) is an attorney at Schindlers attorneys in Johannesburg.

This article was first published in De Rebus in 2015 (Jan/Feb) DR 34.

De Rebus