Is “No Pets” Constitutional?

Some schemes have amended the prescribed rules and now have a rule 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. 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.

In an article in the third 2021 edition of the prestigious Journal of South African Law (pages 456 to 473), Professor C.G. van der Merwe analysed a recent Australian case which is directly applicable to sectional title management in South Africa. He confirmed that all the same principles apply to sectional title rules, considered applicable case law and came to the conclusion that in a South African sectional title scheme, a “blanket pet prohibition” rule is invalid.

In the article, entitled “Is a scheme rule prohibiting the keeping of animals in a sectional title scheme invalid? Lessons from the landmark decision of the New South Wales court of appeal” Prof. van der Merwe analysed the multi-faceted test applied by the court in the New South Wales case, noted that owners who buy into a scheme are not contractually bound to the rules and, in his concluding paragraph, gave his opinion that:

“A rule containing a blanket prohibition on the keeping of animals is unreasonable and therefore invalid because it:

• does not provide a mechanism for the body corporate to consider the individual circumstances of each owner or animal;
• unreasonably and unnecessarily precludes the exercise of the ownership rights of use and enjoyment in accordance with contemporary standards which include the entitlement to keep a pet; and
• does not permit a balanced consideration of the multiple sides to the issue, but operates only in the interest of sectional owners who oppose pet ownership.”

In a study conducted in 2011 it was reported that:

85% of pet owners regarded pets as family;

57% of pet owners were of the opinion that they are their best friends;

81% of pet owners did not feel alone when surrounded by pets.

The Sectional Title Act stipulates that the owner of a unit in a sectional title scheme acquires separate ownership in his/her unit which entitles him/her to enjoy and use it by exercising the ordinary incidents of ownership to the extent which he/she is constrained in law to do so. The keeping of a pet is a good example of an incident of ownership which entitles an owner to enjoy and use his/her property. This right of an owner will only be limited if the animal causes a nuisance or a hazard to other residents. In normal circumstances there will be conduct rules that will apply to incidents of nuisance and harm to other residents. Less restrictive sanctions can be imposed if there is a contravention of these rules.

Barend Kruger B luri, Dep. Legum, LLB, LLM (Family Law)