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Monday Jun 19, 2017

When neighbours' pets are a nuisance

It's billed as a more secure and a more communal way of life, offering the best of both worlds: the use of communal facilities; safety in numbers; fewer maintenance issues and fixed management-costs. Sectional-title living is viewed by many as the answer to the global trend of shrinking house and property sizes.

However, living in close quarters with strangers comes with drawbacks – one of the most emotive is pets.

New sectional-title rules make special provisions for keeping assistance dogs, which trustees are only allowed to withdraw if the animals become problematic.

The issue of pet-keeping was recently raised by a reader, Liz (surname withheld), who mailed me about her neighbours' cooped-up dogs.

"My neighbours have four dogs which are kept in a small space. They bark all day and at any movement in the street. The owners are at work.

"I work from home and this is causing me stress with the continual barking, which is annoying and disturbing our suburb.

"I have spoken to the owners and they say the dogs are there for protection, they are not at home all day, therefore are not aware of the disturbance and it does not affect them."

Since the distressed animals are disturbing the peace and the neighbours are doing nothing about it, Liz could call the metro police, even the SPCA. If she lived in a sectional title unit, she could complain to the body corporate.

If that fails, there's always the newly appointed Community Schemes Ombud Service, which offers a dispute resolution service and is empowered to make an adjudication award, tantamount to a high court order.

BBM Law specialist Marina Constas said keeping pets in sectional title complexes is "never a walk in the park". She believes there are many reasons this emotive issue has retained its top spot in the model conduct rules outlined in the new sectional title legislation.

The new amendment to the Sectional Titles Schemes Management Act of 2011 makes provision for service dogs – guide, hearing and assistance.

"You need trustee permission to keep pets – but the trustees have to give it proper consideration. They can withdraw permission if the pet becomes a nuisance. A lot of schemes have amended the rules, saying no pets at all but they need to go through the ombud to get a compliance certificate.

"It has never surprised me that the keeping of animals, reptiles and birds is the first rule in the model conduct rules of a sectional title scheme. In my experience, this is justified by the number of pet-related disputes in the industry and the amount of time, energy and legal fees pet owners and bodies corporate are prepared to spend in fighting cases."

Constas said for those living in a sectional title scheme, there are new rules to be read with this act and that owners and residents must abide by them.

"If the sectional title scheme falls under the new 'Annexure 2 Model Conduct Rules', then owners or occupiers must have the trustees' written consent to keep a pet. The trustees are not allowed to unreasonably withhold consent.

"This means that they must put their minds to the various circumstances surrounding the request; they need to consider the best interests of the scheme and the prejudice, if any, that owners would suffer compared to the interests of the prospective pet owner."

Constas cited recent cases in which trustees tried to remove a beloved, quiet bulldog from his 11-year-old companion, despite the parents providing a psychiatrist's report stating the dog helped the child deal with his anxiety.

In another case, trustees were asked to consider granting permission for an owner to keep an elderly Great Dane, who hardly ever moved during the day and had forgotten how to bark.

"These are the type of issues with which the trustees must grapple. Should they decide to allow a pet into the scheme, the model rules also tell us that they will be allowed to provide for any reasonable condition regarding the keeping of the pet. The trustees can withdraw their consent should any conditions imposed be breached."

Under new "Rule 1(2)", Constas said trustees' consent is considered a given should any owner require a guide dog, hearing dog or assistance dog.

"Obviously, such an owner must provide the trustees with evidence of a disability. Interestingly, there has been an increase in diabetic alert dogs, which are trained to alert their owners in advance of low or high blood-sugar events before they become dangerous." Owners who have obtained permission to keep pets in their townhouses will find this is not the end of their efforts, Constas cautioned. "They must understand their reciprocal obligation. Apart from the various conditions which the trustees will apply – for example, always walking dogs on leashes and having a poop scoop at the ready – the act stipulates that pets should not cause any inconvenience.

"If an owner is breaching the rules and the act by either keeping a pet without permission or having a nuisance of a pet, there are a few options available to the body corporate," she noted. "A court interdict can be obtained to compel the pet's removal or both parties can agree to private arbitration or the dispute can be referred to the Community Schemes Ombud Service."

Constas said that if owners want a petfree complex, it is possible to draft a "no pets" clause in the rules, if the body corporate – which includes all the owners – can give each a special resolution.

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Cape Argus

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