HOLIDAY HOMES ARE NO HOLIDAY

Finding a holiday home isn’t as simple as choosing your favourite holiday spot and packing your bags. With the festive season around the corner, the urge to buy a holiday home may be rising, but a decision like this demands time and careful consideration. Let it simmer. This is not a holiday – this is an investment.

Just like those of us who want to avoid over-crowded beaches and rush-hour-like traffic when travelling, you may want to wait for the off-season. Property prices, as well as both the buyer’s and seller’s expectations, may be affected by the holiday buzz.

Be sure to conduct the necessary research. Owning property in an area is different from simply visiting for a week or two during the holidays. Make sure you choose a location suitable for a home, not just a pit-stop. Consider the area’s liveability both in and out of season. Quite often holiday destinations become ghost towns when the holiday season ends. If that is exactly the peace and quiet you want, perfect! If it’s not, you may want to continue your search, because, contrary to their names, holiday homes can’t only be lived in during holidays.

Homes need constant maintenance and care. Staying close to your holiday home will allow you to break away for weekends, making sure the home receives the necessary attention. If your holiday home is a bit too far from your current residence, consider renting it out for the periods when you are not there. This will ensure your property is well-maintained as well as offering you an extra income. When choosing to rent out your property it becomes especially important to make sure the area provides the necessary amenities for everyday living.

The most important aspect, though, is enjoyment. A holiday home is meant to be enjoyed. Make sure you enjoy yours for the longest possible time by making an informed decision.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

KEEP CALM AND SELL YOUR PROPERTY

Selling your property can often cause your hands to get itchy, or ants to start roaming where they have no business being. But more often than not rushing into the sale of the property leads to choices you’ll regret later. Several points need to be remembered once you’ve decided to take the plunge and dive into the property market.

The first step to take is to have your property evaluated. The evaluation is not only to help you find out your property’s market value, but it will also help you identify the areas where your property needs improving. Before you even think about going any further it is advisable to complete any necessary maintenance and make improvements that could lift the value of your property. This phase will not only allow you to lift the property’s selling price, but it will also allow you to improve its attractiveness to buyers. A fresh coat of paint and clean surroundings will contribute as much to attracting possible buyers as the actual features of the property.

Once you’re ready to start with the listing process it’s important to notify the bank where your mortgage is of your intention to sell your property to avoid any delays in the transfer of documents once the sale is complete. Equally important is to procure the services of a conveyancer to ensure a seamless sale.

Even though it may seem daunting, the sale of your property is not a journey you have to go on alone. An estate agent can be more than a middle man during your property sale – their expertise can help you avoid unnecessary pitfalls while helping you direct your attention where it matters from the beginning. An experienced estate agent will be able to help you screen the interested parties early on, ensuring you spend the least time with those who will not continue with a purchase later on. They can also help you through the unforeseen circumstances that you may not have been able to handle on your own. The experience here is of importance, as it will ensure the highest level of knowledge in the technical field.

Although it is sometimes tempting to advertise with as many real estate companies as possible to get maximum marketing exposure, it may not be the best choice. Having one firm handle your listing from beginning to end will ensure the smoothest process when buyers become committed. It will also allow you to create a closer relationship with your real estate agent, having them as a partner in your endeavour and not part of a competition to see who can sell the property first.

Having the assistance of an estate agent doesn’t mean that you have no responsibilities, though. Making sure the property is well-maintained (having made the necessary improvements after the evaluation) and is as presentable as possible is on your shoulders. In reality, homes don’t look the way they do in property magazines or on television shows – it takes effort to make a home look both lived in and picture-perfect. Clear out as much as possible from the property while leaving essential items that create a sense of homeliness. One book on a bedside stand will do – you don’t need to impress potential buyers with all the books you’re planning on reading next. Finally, even though it’s a part of everyday life, no one needs to see your dirty laundry or dishes. Make sure your home is (and looks) clean at all times.

The final touch: ambiance. A bouquet of fragrant flowers (such as lavender, roses or geraniums) will create a welcoming aroma as buyers enter the property as well as being a functioning part of the decoration.

Now, no matter how much effort has been put in, or how perfect your listing is, sometimes properties just don’t sell. At these times it’s important to keep calm and try again. Though, maybe not immediately. Recessions, political angst, a looming tax season – all of these events and many more can cause the property market to grow a little stagnant. Potential buyers may hold back on purchases to see how the dust settles. Our advice: do the same. Remove your listing from the market, avoiding it being around too long and becoming part of the scenery, so to say. Once the market picks up again, re-list your property, allowing it to be seen with new eyes. In the interim time, you may consider renting out your property if you will not be staying there yourself.

Selling a property demands meticulous work, but following these easy steps with the necessary guidance will make it a walk in the park.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

HOMEOWNER’S INSURANCE FOR LANDLORDS

Apart from paying off a bond on a rental property, property investors/landlords are usually also paying for homeowner’s insurance. What is homeowner’s insurance? Homeowner’s insurance covers the property owner against damages to the structure of the property. This damage could be caused by flooding, fire, wind, hail or other natural causes.

However, the above is not the case with all homeowner’s insurance policies. If you have a standard homeowner’s insurance policy, you might not be protected against any damages that occur while the property is occupied by a tenant or empty. Additionally, this policy might also not cover you for loss of rental income when the property cannot be occupied due to damages.

It’s important to take note of the terms of your policy. Most banks won’t approve a bond unless you have homeowner’s insurance, however, if you are a landlord, it would be wise to check the specific terms of your policy, as you need to ensure that your insurer is aware of the fact that your property is occupied by tenants and not by you, the owner. It’s also important to check if there are any provisions in your policy which prevent you from renting to a certain category, for example, students.

It’s also very important to check if the sum insured stated on your policy is the full replacement cost of the property, and not just its market value, as this could be higher or lower.

The correct coverage might be more expensive, however, paying a little more on your premium is better than finding out that your cover is not valid in the event of a disaster hitting your property. It’s important for new homeowners to know that they do not need to accept the homeowner’s insurance offered by their bank; they are entitled to shop around for the perfect insurance for their needs and requirements.

Keep in mind, you might not have as much flexibility if your property is situated in sectional title schemes because there will be only one homeowner’s insurance policy for the whole building or complex. The premium will have to be paid either annually or monthly by all the members of the body corporate.

Additionally, there are several other insurance matters for landlords to be aware of, which include household contents that belong to tenants that must be insured by them; the landlord is not responsible for any damage or theft of tenants’ possessions. However, if you are renting your property furnished, you will need to take out a separate household contents policy to cover the furniture and equipment that belong to you.

In conclusion, if you are renting your property, always make sure that you check your policy, to save yourself both time and money in the event of damage to your property.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

WHAT TO LOOK OUT FOR BEFORE BUYING A PROPERTY

You’ve searched far and wide for the perfect home for you and your family, and you’ve finally found it, or so you thought. Buying a home, especially for the first time, is as overwhelming as it is exciting.

You’ve viewed your dream home, but remember, you receive so much information during your viewing, that you could easily become overwhelmed and miss important details. Especially if you have fallen in love with your potential new home. It is important to remember that there are various “red flags” that you need to look out for before purchasing, as missing these “red flags” could have significant financial repercussions. Before signing, make sure to look out for the following:

1.Foundation and structural faults

What do you think is the most important part of a house? The double garage? The interior? How well-lit the rooms are? No. The most important part of the house, and arguably the costliest to repair, is the foundation of the house. Make sure to look out for large cracks in the walls, as this could be a sign of some serious structural problems with the foundation. Make sure to thoroughly investigate the door frames; if door frames don’t appear to be square or if the doors have difficulty closing, it could be a sign of structural problems.

2.Poor drainage/grading

In most cases, water problems in a house are directly related to poor drainage or grading. However, it is often difficult to detect if a house has poor drainage or grading. An obvious sign of the above-mentioned faults is pools of water or a bouncy bathroom floor which could indicate that there is a leaking shower drain. Make sure to also look out for overflowing gutters, water stains and cracks in the foundation.

3.Patches of fresh paint

A coat of fresh paint is an excellent and quick way to spruce up your home, but if there are random patches of fresh paint around the house, it could be cause for concern. Why? Because it is possible that the seller is trying to hide something beneath the coat of paint.

4.Faulty electrical wiring

If you are looking to buy an older home, make sure that the electrical wiring is not faulty, as house fires caused by faulty wiring is not as uncommon as we would hope. This is especially the case in older homes, as these homes don’t always have an ample supply of power and the number of electrical outlets like newer homes have. Also look out for any exposed wires, as this could cause significant harm to either the home or your family.

5.Neighbourhood condition

When looking for your perfect home, always remember that you are not only investing in the property itself, but also in the neighbourhood. Make sure to ask enough questions about the neighbourhood. For example, if you move into a neighbourhood that is deteriorating or crime-ridden, it could have a significant impact on your return on investment.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

SELLING YOUR PROPERTY? HOW TO STAGE YOUR HOME

If you want to ensure that your property sells quickly, staging your home could help. If you stage your home, you are presenting it in the best possible light and condition, which will make it easier for potential purchasers to imagine themselves living there. So, how do you stage your home?

1.Declutter your home

When staging your home, the first thing you should do is remove any clutter and clean your home. Remove any small and personal items from all surfaces. Make sure to box up spare belongings, rather than throwing them in drawers and closets as purchasers tend to open them. Once you have decluttered your home, do a deep cleaning. Make sure that your kitchen and bathroom is spotless and clean anything that your pet touches, as no purchaser will be attracted to pet odours. If you do not have the time to clean your home, hire a professional cleaning company to ensure that your home is spotless.

2.Light and bright is the way to go

Purchasers usually like bright, sun-filled rooms, so lighting is an essential part of staging your home. Make sure to open your blinds/curtains before a showing. Also, ensure that your light fixtures are appealing and that your lampshades aren’t dated and lopsided. With the correct lighting, your home will feel welcoming and bright and will capture the hearts of potential purchasers as soon as they walk through the door.

3.Start with the most important rooms first

If you want to stage your entire house, you can, and it will certainly get your home sold quicker. However, if you don’t have the time or money to stage your entire home, try only staging the most important rooms. The most important rooms include the living room, the master bedroom and the kitchen. Any extra bedrooms should be at the bottom of your list of priorities.

4.Remove furniture

The last thing you want is for your home to look cramped. Consider removing some furniture, as your home will look bigger and more appealing.

5.Rearrange your furniture

Now that you have removed some of your furniture, position all couches, chairs and tables away from your walls. You can then anchor your space with an area rug, which will create a cosy, intimate space which is ideal for socialising with friends and family.

6.Don’t just focus on the interior of your home

If you neglect the outside of your home, you might not attract as many potential purchasers. You can get potential purchasers to walk through the door by power-washing your house and walkways, cleaning your windows, mowing the grass, planting flowers etc.

7.Add the finishing touches

Finally, now that your home is picture-perfect, add some finishing touches, such as fresh flowers in vases, a bowl of fresh fruit on the counter and folded towels in the bathroom. Your home is now ready to meet and impress its potential new owner.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

PRIVATE USE OF GROUNDWATER RESOURCES

This article will provide a brief overview of how the abstraction and usage of groundwater resources are regulated, with specific reference to the Cape Town Metropole which has made headlines over the past few years for being one of the first big metropoles in the world to almost run out of this valuable resource.

The usage of groundwater in the Western Cape is regulated by three important pieces of legislation, namely the National Water Act (1998), the Water By-law (2010) and the Water Amendment By-law (2018). It is from the outset important to note that all groundwater in South Africa has been a national resource since 1998 as per the preamble of the National Water Act and no private person may thus use and abuse water which they abstract on their private property as they wish.

Installation of mechanisms to abstract groundwater:

Groundwater is most commonly abstracted by way of a borehole, well-point, or well. This article will only refer to boreholes as the relevant legislation defines a borehole as a “hole sunk into the earth for the purpose of locating, abstracting or using subterranean water, and includes a spring, well and well-point”. This definition is thus broad enough to include almost any method of abstracting groundwater.

The City of Cape Town requires a property owner who plans to sink or dig a borehole to notify the director in writing at least 14 days before such action of his or her intention to do so. The “director” is defined in the City’s by-law as the employee of the City who is responsible for water and sanitation. This notice must also inform the director of the exact location where one intends to sink or dig the borehole, as well as the purpose for which the groundwater will be used for.

It is furthermore important to take note of section 57 of the Water By-law which requires the owner of a premises on which a borehole is located to ensure that:

  • the borehole is adequately safeguarded from creating a health nuisance;
  • the borehole is not filled in a way or with material that may cause an adjacent well, borehole or underground source of water to become polluted or contaminated; and
  • no interconnection is made between a water installation supplied from the main and any other source of water supply, meaning that your groundwater system may not in any way be connected to the municipal water supply system.

Section 61 of the Water By-law is also important to take note of as it states that the owner of a premises on which non-potable water, which includes groundwater, is used must ensure that “every terminal water fitting and every appliance which supplies or uses the water is clearly marked with a weatherproof notice indicating that such water is unsuitable for domestic purposes”. This notice must be in three official languages and must be clearly visible.

Usage of the groundwater:

It is important to note that groundwater may not be used for domestic purposes. Water is deemed to be used for domestic purposes when it is used for drinking, ablution and culinary purposes, excluding water used for toilets and urinals. You may thus use your borehole water for any non-domestic purpose, subject to certain restrictions. One such restriction relates to the watering of your garden. The Water Amendment By-law of the City of Cape Town states that no garden may be watered between the hours of 09h00 and 18h00, and watering within the permitted hours may not exceed one hour in duration.

Complying with the above-mentioned regulations is important for two main reasons. Groundwater is a limited resource which must be used sparingly. Scientists have warned that lower rainfall figures will become the norm due to factors such as global warming. Furthermore, the preamble of the National Water Act emphasises the fact that water must be used in a sustainable manner and that it must be used to the benefit of all people. Another very important consideration is that non-compliance with any of the above regulations is an offence and a person who is convicted of such an offence shall be liable to pay a fine or to serve a term of imprisonment of up to five years, or both.

Readers who are not resident in the Cape Town Metropole are strongly encouraged to check if their local municipalities have their own by-laws regulating the use and abstraction of underground water as non-compliance therewith may carry similar penalties.

Reference List:

  • National Water Act 36 of 1998
  • City of Cape Town Water By-law (2010)
  • City of Cape Town Water Amendment By-law (2018)
  • http://www.capetown.gov.za/Family and home/Residential-utility-services/Residential-water-and-sanitation-services/Residential-water-restrictions-explained

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

SALE OF PROPERTY AGREEMENTS: TYPES OF CLAUSES

Non-refundable or Forfeiture Clause

Sellers are sometimes sold on the idea of including a non-refundable deposit clause in the Contract of Sale. More often than not, sellers are under the impression that they will be entitled to all of the non-refundable deposit or monies already paid to the conveyancer on account of the purchase price if the purchaser breaches a Deed of Sale and such breach results in the cancellation thereof.

The seller will, however, then find out that after cancellation of the contract due to breach, that not all amounts may be retained as liquidated damages or as a non-refundable deposit.

In terms of our case law, Matthews v Pretorius (1984) (3) (SA547W) and the Conventional Penalties Act 15 of 1962 (“the Act”), any penalty or liquidated damages contained in a contractual obligation shall be subject to the provisions of the Act which affords the Court the discretion to, on hearing a claim for a penalty or a non-refundable deposit, find that it might be out of proportion to the prejudice suffered by the creditor and the Court may reduce the penalty to such extent as it may consider equitable under the circumstances, taking in due consideration the interests of all concerned.

This means that any forfeiture stipulation resulting from the cancellation of an agreement, including non-refundable deposits, as well as the retention of certain monies already paid by a purchaser as liquidated damages, will be subject to the measurement as described in the Conventional Penalties Act.

Estate agents should be very careful not to create an expectation with the seller that he or she will be entitled to all of the non-refundable deposit or monies already paid to the conveyancer on account of the purchase price if a purchaser breaches a Deed of Sale of immovable property and such breach results in the cancellation thereof.

The role of conveyancers is important to understand as well. It is not expected from conveyancers to act as a Judge and Jury when dealing with monies in their trust account when a dispute arises about who should be the rightful recipient of such monies once the Deed of Sale is cancelled. Unless and until such time as an agreement has been reached between the parties or a competent Court has made an order, it cannot be expected of conveyancers to pay the monies to either party.

Breach of Contract

The relationship between a purchaser and seller is governed by the Contract of Sale. The breach of contract occurs generally when a party to a contract without lawful excuse fails to honour his or her obligations under the contract.

When a contract is cancelled in terms of the breach clause of the said contract, the aggrieved party would normally have the right to claim damages from the guilty party. When claiming damages, the aggrieved party must note that the Conventional Penalties Act will also be applicable to the amount of damages that may be claimed.

In the instance of the seller, the seller's damages will often only be liquidated once the property is resold and the seller's claim will only be for the deficit between the amount of resale and the original contract sum of the cancelled agreement.

Rouwkoop

A rouwkoop clause in its pure form comes from our common law. It is derived from the Dutch words meaning “regret and purchase”. Such a clause entitles a party to a contract to pay a sum of money in order to be allowed to withdraw from the contract. It essentially sets a purchase price for freedom from the contract payable by the purchaser. If the purchaser then withdraws from the contract and pays the agreed rouwkoop amount, he will be acting in accordance with the terms of the agreement and his withdrawal will not constitute a breach of contract. (It is not regarded as a penalty.) This is clearly very distinguishable from a penalty clause which would come into operation only where there was a breach of contract.

Unfortunately, many sale agreements confuse the position in law whereby the forfeiture clause is merged with a rouwkoop clause, which provides that if the purchaser breaches the agreement and the seller cancels the agreement as a result thereof, the purchaser will forfeit his or her deposit as rouwkoop.

In a decision of Royal Anthem Investments 129 (Pty) Ltd v Yuen Fan Lau and Shun Cheng Liang (941/2012) (2014) (ZASCA 19) (26 March 2014), the Court had to interpret a rouwkoop clause in a Deed of Sale which read as follows: “Will have the right to cancel the agreement and to keep other amounts payable as rouwkoop, or by means of any pending decision by a Court of the real damages suffered”.

The Court in this instance found that the deposit was not an amount as envisaged by the rouwkoop clause in the true intention of the rouwkoop clause history. A penalty clause will only come into operation when there was a breach of the contract.

Conclusion

From the said case law and the provisions of the Act above, it is clear that:

  1. Non-refundable deposits are a myth and together with forfeiture clauses, subject to scrutiny by the Courts. Unless the parties to the agreement can come to an agreement regarding the penalty, the Court must be sought to quantify the amount payable as a penalty.
  1. A rouwkoop clause in a Deed of Sale must be clearly distinguished from the penalty clauses above as it is not subject to the provisions of the Conventional Penalties Act.

So, be sure to demystify the myth before you enter into one of the most important transactions of your life. Consult with an attorney.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

BUYING PROPERTY ONLINE

We all know the hassle of moving, even if it is just around the corner. Due to family reasons, employment opportunities, or university studies, it is not uncommon for people to not only move down the road but also to move to different provinces in South Africa. This is indeed a challenging task, however, technology has made it a lot easier to find the perfect home for you, even if you are nowhere near it.

Here are some tips you can follow if you are planning on buying property in another province and need to find your new home:

  1. Seize the power of social media:

Social media is a quick and efficient way to let your friends and family on social media know about your home search. The more people that know about your planned move, the more chance you have of someone in that area knowing of the perfect fit for you.

  1. Go online:

The first place that you can start your property hunt is online. You can easily gain access to massive amounts of available properties and information from the comfort of your own home.

  1. Virtual tours:

Don’t just look at the photos of the property posted online. A lot of properties have full virtual tours which means that you can take a virtual stroll through the entire property without physically being there. If the property does not have a virtual tour, you can use tools such as Google Maps to view the property and neighbourhood from the outside, giving you a clear indication of whether this neighbourhood is the perfect fit for you.

  1. Visit the area:

Visiting the surrounding area is ideal, but not always possible, especially if the property is far away. However, it is still a good idea to visit the area before moving. When you visit the area, you will have the opportunity to see the area and surrounds in person. You can plan your visit ahead, and schedule your viewings with your estate agent.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

HIJACKED BUILDINGS

As an owner of a building, trying to evict the hijackers and their tenants can often be without success.

Hijacked buildings are when the legal owner is deprived of their property, land and possessions by the slumlords. The slumlords impose themselves as the rightful owners, collecting rent and acting as body corporates of the hijacked building. The issue of buildings being occupied without the legal owner’s consent has become a common method for slumlords to generate quick profit. A common case with residential flats and apartments, the value of the building as well as the amenities around it depreciates due to the unkempt nature the building becomes.

Because the legal owners are registered at the municipality as being responsible for bills, taxes and utilities, slumlords have no obligation to meet these payment deadlines as they are not identified as the owners and the owners then obtain large amounts owing to the municipality. Should they have requested for the water and electricity be cut off as a means to not accumulating debt, the property’s occupants would likely become violent, destroying what is left of the building’s conditions.

When the rightful owners approach the illegal owners and occupiers of the property, they are violently threatened, making them unable or fearful to return to claim their property. Because everyone has the right to property and housing, their right cannot be imposed on, even in cases of illegal occupation. Seeking legal advice ensures that you are not breaking the law as the rightful owner. An investigation into locating the slumlords is established, as well as the determination of whether the complainant is the rightful owner of the hijacked property. This opportunity also restores the rights of people who are paying exploitive amounts of rent and ensures that their access to basic needs is met. To restore the condition of the building, the occupiers must be offered alternative accommodation and an order must be granted by the court before an eviction can be conducted. Breach of the said order warrants for the arrest of the unrelenting occupier.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN TRUSTEES BAN YOUR PET IN A SECTIONAL TITLE SCHEME?

Problems around the ownership of pets are common amongst owners of sectional title properties, but while laws may be imposed by the trustees of the homeowners’ associations, the requirement for a reasonable approach is entrenched in the very laws which govern how a sectional title scheme should be managed.

Where the trustees have reasonably, after following due process and considering all relevant factors, withdrawn their consent to keep a pet, the owner concerned is then not entitled to continue keeping that pet in the scheme.

This is according to the Prescribed conduct rule 1 in Annexure 9 of the Sectional Titles Regulations which deals with the keeping of pets, including reptiles or birds.

It states:

“1. (1) An owner or occupier of a section shall not, without the consent in writing of the trustees, which approval may not unreasonably be withheld, keep any animal, reptile or bird in a section or on the common property.

(2) When granting such approval, the trustees may prescribe any reasonable condition.”

The phrases, “may not unreasonably” and “may prescribe any reasonable”, clearly seek to assist in the creation of harmony amongst a community living side by side in a sectional title development.

These regulations exist to protect the pet owner from unreasonably strict rules, and equally, they must confer on the other owners the right to a nuisance-free and peaceful environment. This means that both parties need to consider each other’s needs.

This consideration, in granting or refusing consent, will be central to inquiry: will it unreasonably interfere with other’s rights to use and enjoy their units; and which conditions would be appropriate in these circumstances to ensure that the risk of nuisance is reduced to a reasonable level?

For this reason, owners or occupiers can only keep pets in a section or on any part of the common property with the written consent of the trustees. However, the trustees cannot unreasonably withhold that permission. An absolute prohibition to keep a pet could be considered unreasonable and if consent to keep a pet is unreasonably withheld, the owner can take the matter to court.

The trustees must furthermore, base their decision on the facts and circumstances of the particular case. The decision to either grant or refuse consent should be recorded in the minutes of the trustee’s meeting, giving reasons that illustrate they have applied their minds to the particular set of facts.

An example of a court case which arose from a dispute regarding permission to keep a pet in a sectional title development was Body Corporate of The Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D), in which it was held that the trustees are obliged to individually consider each request for permission to keep a pet, and to base their decision on the facts and circumstances of each particular case.

A further extract from this case pointed out that trustees are not entitled to refuse an application on the basis that they are afraid of creating a precedent. The trustees were, in this case, found to have been grossly unreasonable and have failed to apply their minds when they refused the Applicant permission to keep a small dog.

The question of the reasonableness of the actions of the trustees, in granting or withholding permission and setting conditions, will turn on the nature of the pet concerned and the circumstances of the scheme. In dealing with any application for permission to keep a pet, the trustees should consider what type of pet it is, and whether there are already other similar pets at the scheme.

It is unlikely that any action by the trustees to remove a ‘companion animal’ or ‘service animal’, such as a guide dog owned by a blind or partially sighted owner, would be held to be reasonable in the absence of a clear nuisance caused by the animal. The fact that a person sometimes forms an extremely strong emotional tie with their pet could also be an important consideration when the trustees decide whether or not to grant permission.

The trustees are not, however, powerless in situations where the conditions of permission to keep a pet are not being met. The trustees can withdraw permission if it is reasonable to do so. Examples include if the pet is causing a nuisance to other owners or occupiers (e.g. barking persistently), or the pet is considered dangerous to other owners or occupiers.

Where the trustees have reasonably, after following due process, withdrawn their consent to keep a pet, the owner concerned is then not entitled to continue keeping that pet in the scheme. However, the enforcement of this could be tricky for the trustees. The body corporate is not entitled to forcibly remove a pet from an owner’s possession. This can only be achieved by a court order, if – for example – there are too many dogs being kept in an inadequate space, the trustees can get the assistance from the local SPCA who can be contacted to come to the scheme to do an inspection in loco. If it is justified, they will implement the necessary legal steps to have the dogs removed.

Careful consideration and the application of the principles as set out in the rules of the scheme and the above-mentioned regulations will lead not only to peaceful co-existence, but also healthy growth in property values for the developments implementing such approach. A harmonious board of trustees results in a happy community, which in turn will ensure a good name for any development.

Reference List:

  • Conduct Rule 1 in Annexure 9 of the Sectional Titles Regulations
  • Permission to Keep Pets | Paddocks

https://www.paddocks.co.za/paddocks-press-newsletter/permission-to-keep-pets/

  • Body Corporate of The Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D)

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