Body Corporates - High Court Overturns Trustees’ Unreasonable Pet Ban in Sectional Title Scheme
October 2, 2024 - Administrative Management, Sectional Title Management
By Auren Freitas dos Santos
This article focuses on an important judgment handed down by the KwaZulu-Natal High Court, Durban on 26 March 2018 which offers valuable insights for owners and trustees regarding the regulation of pets within sectional title schemes. The case highlights key issues around trustees’ decision-making powers, the application of conduct rules, and owners’ rights within a sectional title scheme.
Case Background
The development comprises two phases: Phase One and Phase Two. Historically, Phase One allowed pets, while Phase Two did not. The applicants purchased a unit in Phase Two, believing, based on the seller’s assurances, that pets were permitted.
Upon taking transfer of the property, the applicants sought permission from the trustees to keep a parrot and a dog in their section. Their application for consent was declined by the trustees. Dissatisfied with the decision, the applicants initiated an application in the High Court, seeking a review and setting aside of the trustees’ refusal. They argued that the trustees had not exercised their discretion reasonably, as required by conduct rule 1 prescribed under the Sectional Titles Schemes Management Act, 2011.
Court’s Analysis
The court examined whether the trustees had reasonably applied their minds when refusing the applicants’ request. The prescribed conduct rules applicable to the scheme, particularly Rule 1, stipulate that trustees must not unreasonably withhold consent for keeping an animal, reptile, or bird in a section or on common property.
The trustees provided several reasons for their refusal:
- A longstanding principle of not allowing pets in Phase Two.
- Structural differences between Phases One and Two, deeming Phase Two unsuitable for pets.
- An impending adoption of new conduct rules likely to prohibit pets in Phase Two.
The court found that the trustees relied heavily on a fixed principle of a “no pets” policy without adequately considering the individual merits of the applicants’ application. The court noted that such unwarranted adherence to a fixed rule amounts to a failure to exercise discretion reasonably.
Moreover, the court highlighted that any future changes to conduct rules could not retroactively justify the current refusal. The trustees’ decision lacked consideration of relevant factors, such as potential nuisance issues or specific conditions that could mitigate any concerns.
Court’s Decision
The court ultimately set aside the trustees’ decision, concluding that they had not reasonably exercised their discretion. The matter was referred back to the trustees for reconsideration, with instructions to evaluate all relevant aspects and make a decision within 30 days.
Regarding costs, the court ordered the trustees, in their capacity as representatives of the body corporate, to pay the applicants’ legal costs. The judge acknowledged that while the trustees may have acted on mistaken legal advice, the applicants were compelled to seek legal recourse due to the trustees’ inaction and unreasonable refusal.
Lessons for Sectional Title Schemes
This judgment serves as a reminder to sectional title trustees to:
- Ensure that conduct rules are properly registered and applied consistently.
- Exercise their discretion reasonably and consider each application on its merits.
- Avoid making decisions based on future or unregistered rules or so-called policies.
- Consider factors such as potential nuisance and the suitability of individual sections for pets when making decisions.
For sectional title owners and potential buyers, this case underscores the importance of understanding the conduct rules before purchasing a unit, especially when pet ownership is a crucial consideration.
This judgment sets a precedent that could influence how similar disputes are resolved in sectional title schemes across South Africa. Should you have any further questions or require assistance, please contact us at [email protected] for a no-obligation quote.
Courtesy: The Advisory - Community Schemes Specialists
Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, is a Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law. Reach out to him at [email protected] if you have questions regarding beneficial ownership within your HOA.
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Visit: www.theadvisory.co.za, or
Email: [email protected]
TAGS: Body Corporate, Conduct Rules, Dog, No Pet Rules, Pets, Sectional Title
