How should estates deal with problem pets – and problem owners?10th Mar 2020
Living in an estate is typically a pleasant experience, with a strong sense of community as well as an idyllic lifestyle. Unfortunately, problem pets can easily disrupt this lifestyle. They can be noisy, disruptive, smelly, and can even cause physical harm to other residents. And, in some cases, the owners appear to be oblivious to the problems their beloved pets are causing. These situations often lead to tensions in the complex, especially if the owner is unwilling or unable to resolve the issue.
Granting permission to own animals on an estate
Most sectional title bodies corporate and/or HOAs are allowed to put a limit on the type and number of pets residents may keep. The more clearly defined the rules are, the easier they will be to enforce.
If the body corporate doesn’t have written rules in place, the standard ‘prescribed conduct rule’ applies. This rule requires owners to get the trustees’ consent for any animal, reptile, or bird on the section or common property. Trustees are not allowed to withhold consent ‘unreasonably’. Hearing, assistance, or guide dogs are exempt from this rule and are considered to have the trustees’ consent. The trustees are also allowed to dictate conditions with regard to keeping the pet on the estate grounds. Finally, and probably most importantly, when dealing with problem pets, trustees are allowed to withdraw consent if the owner of the section breaches any of the outlined conditions.
In terms of HOAs, they can restrict pets but don’t have any prescribed rules they need to follow. The HOA’s power will depend largely on the founding documentation that outlines the rules and powers given to the HOA.
Most matters regarding problem pets, such as disturbances caused by barking or howling, or dogs and cats wandering beyond their own properties, are under the jurisdiction of local by-laws. These municipal regulations are enforced by the municipality or by appointed sub-contractors. Enforcement of these by-laws will usually include visits by law enforcement and the issuance of increasingly serious fines. These fines are usually enough to force owners to take action and change their pet’s behaviour. But what happens if it doesn’t, and the problems continue?
How can the HOA deal with problem pets?
The first step should always be to try and find an amicable solution. Some owners are receptive to feedback about their animal’s behaviour and will work alongside the community to address the issue. People who aren’t at home all day won’t know that their dog is making a noise unless they’re told, and will often find ways to reduce their pet’s distress by sending them to doggy day-care, or hiring a dog walker. Unfortunately, other people will dig in their heels and refuse to make a change.
The law states that trustees can remove their consent if the owner breaches the reasonable conditions upon which the animal is allowed to stay in the complex. The owner must be given notice of the breach and be given sufficient opportunity to fix the situation. If the situation continues, the trustees can hold a hearing in which evidence for the breach is provided, and the trustees can decide whether or not to revoke consent by a majority vote. The owner must then receive written notice of the withdrawal, and be given enough time to rehome the animal.
The Community Schemes Ombud Service
But what if the owner digs their heels in even further? The body corporate, or HOA, is not allowed to remove an animal from the owner’s possession forcibly. The final recourse is to file a dispute with the CSOS, and invoke Section 38 of the CSOS Act. The Community Schemes Ombud Service has resolved a total of 4,979 disputes since its inception in 2016, either through conciliation or more formal adjudications.
The application to the CSOS must include statements detailing the relief sought by the application, the name and address of each person materially affected by the complaint, as well as the grounds on which the HOA seeks relief. The CSOS charges a nominal fee for dispute resolution: R50 for conciliation and R100 for adjudication. The average turnaround time for a CSOS dispute is 90 days, though this will vary depending on the severity of the case, and represents a final opportunity for resolution before heading to court.