Residents' Pet Hate: Body Corporate Rules

(Article By Ramodikwe Masemola, Candidate Attorney, overseen by  Muhammad Ziyaad Gattoo, Director, Real Estate, Cliffe Dekker Hofmeyr)

If there was ever a dog that could win a case on looks alone, Theodore was that dog. Only a fine canine would motivate a high court judge to open his judgment by remarking on the "rather striking Saint Bernard".

The case of Abraham and Another v Mount Edgecombe Country Club Estate Management Association Two (RF) (NPC) (7124/12) [2014] ZAKZDHC 36, turned on whether or not Theodore could remain on the prestigious Durban estate, Mount Edgecombe. Shortly after acknowledging the dapper Theodore, Olsen J set the record straight, emphasising that the case was not about the dog but, rather, about the rules we humans voluntarily agree to and those who are elected to enforce those rules. The Mount Edgecombe case serves as a warning to all present and future sectional title dwellers to take heed of the rules which govern their schemes.  

In 2002, Theodore's owners – a mother and son – moved into the Mount Edgecombe Estate and, like the owners before them, agreed to be bound by the rules and decisions of the scheme's management association. One of these rules would come back to bite them; rule 5, entitled "Pet Control," stated the following:

"5.1.1 Written permission must first be obtained from [the respondent] before a dog may be brought onto the Estate. This permission will not be unreasonably withheld provided compliance with the following rules is observed:

5.1.2 …

5.1.3 Dogs must be small and not be of a known aggressive breed. In regard to the size of dogs, they should be of a breed which will not exceed 20 kg when fully grown.”

Acting in contravention of this rule, the dog owners brought the young St Bernard onto the property, only later making an application to the management association for permission to do so. For interest's sake, the dog's weight was estimated at 70 kilograms when fully grown so it is safe to say that Theodore surpassed the 20 kilogram threshold by some margin. The management association denied the requested permission, which led to the dispute.

During the case, Theodore's owners principal argument was that, upon a proper construction of the rule, the directors of the management association had a discretion to grant the permission. According to Theodore's owners, the directors, acting on behalf of the estate, were under the mistaken impression that they had no such discretion and acted on that basis. Thus, Theodore's owners called for the estate's decision to be set aside with a direction that they reconsider the matter using their discretion.

To bolster their argument, Theodore's owners referred to a number of cases, one of which was Body Corporate of the Laguna Ridge Scheme N.O. 152/1987 v Dorse 1999 (2) SA 512 (D). The facts of the Laguna Ridge case were as follows: a resident kept a miniature Yorkshire Terrier dog in a sectional title unit despite the trustees refusing to grant the resident permission to do so. The relevant rules provided that no animals or pets could be kept in the building without the express written permission of the trustees. No criteria for applying these rules was laid down. The court held that each request for permission to keep an animal had to be considered on its own merits and facts. The restriction on keeping of animals was designed to avoid the causing of a nuisance to the other occupants in the building. Despite this underlying policy, the trustees refused permission even though the woman’s dog did not bark and was never allowed to roam on the common property. Accordingly, the court found that the trustees had not adequately applied their minds to the matter, overruling the trustees’ decision.

Olsen J was quick to distinguish the Laguna Ridge case, from the Mount Edgecombe case, pointing out that in the latter set of facts, "the rule generated the decision." In other words – as the court put it - the estate had no discretion to register a non-aggressive breed of dog which exceeds the 20 kilogram limit when fully grown, save for the truly exceptional case of guide dogs for blind people. The court pointed out that Theodore's owners had not provided any extraordinary reason that would warrant the application of the narrow discretion.

The court held that regardless of opinions as to the invasiveness of certain rules, the reality is that the rules were agreed upon by the contracting parties in order to maintain a structure within which residents felt secure about their environment, the conduct reasonably expected of their neighbours and the estate's ability to enforcement its authority.

When purchasing property in a sectional title scheme, we must be aware that we are contractually agreeing to abide by the rules applying to that scheme. While some may be tempted to ask for forgiveness rather than permission – bringing their dogs onto an estate and hoping for the best – this rebellious attitude may lead to unnecessary heartache and, worse still, the eviction of beloved pets.

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