SUPPLY OF ELECTRICITY IS IN ITSELF, NOT AN INCIDENT OF THE POSSESSION OF THE PROPERTY TO WHICH IT IS DELIVERED

The mandament van spolie (spoliation) is a remedy in our law, based upon the fundamental principle that persons should not be permitted to take the law into their own hands to seize property in possession of others without their consent.

Spoliation provides a remedy in such a situation by requiring the status quo preceding the dispossession to be restored by returning the property ‘as a preliminary to any enquiry or investigation into the merits of the dispute’ as to which of the parties is entitled to possession.

As a result, a court hearing a spoliation application does not require proof of a claimant’s existing right to property, as opposed to their possession of it, to grant relief. A spoliation order is thus no more than a precursor to action over the merits of the dispute.

The Supreme Court of Appeal recently analysed the principles applicable to spoliation proceedings in the case of Eskom Holdings SOC Limited versus Nomajapan Masinda[1].

In the matter, Eskom disconnected the supply of electricity to property owned by and in possession of a consumer. The consumer applied successfully for an urgent spoliation order, and Eskom appealed against this decision. Eskom contended that the connection made from its grid to the consumer’s property was illegal and a danger to the public. For this reason, it asserted that it had acted lawfully in disconnecting the supply.

The consumer contended that the lawfulness or otherwise of the dispute was not an issue and that the supply had to be reconnected where after the parties could determine its legality.

It was held by the Supreme Court of Appeal that the mere existence of such a supply is, in itself, insufficient to establish a right constituting an incident of possession of the property to which it is delivered.

To justify a spoliation order, the right must be of such a nature that it vests in the person in possession of the property as an incident of their possession. The obvious examples that come to mind are rights bestowed by servitude, registration or statute.

In contrast, rights that flow from a contractual nexus between the parties are insufficient as they are purely personal and a spoliation order, in effect, would amount to an order of specific performance in proceedings in which a respondent is precluded from disproving the merits of the applicant’s claim for possession.

Judge Leach expressed a view that previous cases which held that such supply is in itself an incident of the possession of the property to which it is delivered, should be regarded as having been wrongly decided.

[1] Eskom Holdings SOC Limited v Masinda [2019]  JOL 44966 (SCA)

For more information, contact the professional legal team at Goldberg & de Villiers Inc on 041 5019800.

 

 

SECURITY ESTATES : CAN YOU FINE SPEEDSTERS?

There are many advantages to buying in a security estate or other community scheme, including quality of life and increased potential for growth in your property’s value.

As a buyer just be aware that you will almost certainly be binding yourself to a set of rules and regulations imposed by the Homeowners Association (HOA) or Sectional Title Body Corporate. Check that you are happy with them before you sign anything! Our courts have regularly confirmed the general principle that you are bound by what you agree to, and a recent high-profile Supreme Court of Appeal (SCA) decision provides an interesting example.

HOAs and Bodies Corporate on the other hand will be particularly pleased with the outcome, the High Court having originally held that the speed limit rules imposed by the estate in question were an unlawful attempt to usurp State powers over public roads and therefore invalid.

Speeding fines in a golf estate

  • A large golf estate (comprising some 890 freehold and sectional title properties with extensive common areas and facilities) is serviced by a network of roads and pathways. It has imposed a speed limit of 40km/h on its roads, with penalties for speeding.
  • A property owner was fined R3,000 for his daughter’s repeated speeding contraventions, but he refused to pay, and the dispute has since then been grinding its way through the courts.
  • The High Court originally held the speed limit rule to be invalid on the grounds that the estate’s roads were “public roads”.
  • But the SCA overturned this ruling, holding that the estate is a “private township” and its roads are (and were from inception) “private roads”. The “general public” has no right to access the estate’s roads, admission being restricted by electrified perimeter fencing and strict control at gated access points to owners, tenants, employees, guests, invitees and other “duly authorised persons”.
  • Even if the roads had been “public”, said the Court, owners had voluntarily agreed to bind themselves contractually to use the estate’s roads subject to the conduct rules. And because invitees are only allowed into the estate with the owner’s prior consent, the rule making the owner responsible for any breach by them of the rules is valid.
  • Moreover, the estate’s imposition of a speed limit is not unreasonable, especially given the presence of children, pedestrians and animals (wild and domestic) in the estate.

The end result – the estate’s speed limit is valid, it is entitled to impose penalties for breaches, and the owner must pay his daughter’s speeding fines together with some (no doubt substantial) legal costs.

For professional legal advice, contact Goldberg & de Villiers Inc on 041 5019800.

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NEIGHBOURS BUILDING? KNOW YOUR RIGHTS RE PLAN APPROVAL

Your neighbours apply to the municipality for approval of building plans. You object strongly – if allowed, you say, the new building/addition/alteration will seriously impact on your property’s appeal and value. It will be unsightly and objectionable. It will ruin the neighbourhood.

How must the municipality’s “decision makers” assess the plans in light of your concerns? A long-running legal fight over just that question has finally been resolved by the Constitutional Court.

The Court’s decision is a vitally important one for all property developers and owners planning to build, as well as for their neighbours, for the simple reason that no construction work can proceed without municipal approval of the building plans (although note that some categories of “minor work” may not require plan approval – ask your local authority for details).

Passed plans and blocked off balconies

  • The owners of a seventeen story city building had been allowed to build balconies right up to the neighbouring four story building’s boundary.
  • The neighbouring building’s owners applied for approval of plans to add another four stories. The problem was that the balconies on three floors of the first building would touch the top stories of the new additions.
  • Predictably, strenuous objections to the building plans were lodged, but in the end result the municipal decision makers approved the plans, and building commenced.
  • Had the plans been properly approved? A string of court battles later, the highest court in our land has had its (final) say on the matter.

3 disqualifying factors and the “legitimate expectation” test

Central to this decision is a statutory protection for buyers and neighbours in regard to various “disqualifying factors”. The proposed building cannot be (our emphasis) “erected in such manner or will be of such nature or appearance that–

  1. The area in which it is to be erected will probably or in fact be disfigured thereby;
  2. It will probably or in fact be unsightly or objectionable;
  3. It will probably or in fact derogate from the value of adjoining or neighbouring properties”.

The Court’s decision – the building plans had not been properly approved. They must go back to the municipality for re-assessment, and the developer is accordingly back to square one. Presumably a demolition order will be on the cards if they are ultimately unsuccessful in having their plans passed.

A decision maker must, held the Court, in assessing the 3 factors above consider the impact of the building proposal on neighbouring properties, from the perspective of a “hypothetical neighbour”. In a nutshell, will it probably, or in fact, be so disfiguring of the area, objectionable or unsightly that it would exceed the neighbour’s “legitimate expectations”?

And whilst it has always been clear that neighbours have to be considered in regard to the “derogation of value” (i.e. reduction of value) aspect, this decision for the first time confirms that their viewpoints are relevant, and must be considered, in regard to all three aspects.

Stronger rights – but not for “sensitive neighbours”

That certainly doesn’t mean however that neighbours can willy-nilly object to plans and expect the municipality to back them regardless of the facts. On the contrary, the Court made it clear that “The legitimate expectations test is not a subjective test determined by the whim of a sensitive neighbour.  The test is objective and based on relevant facts, which would, in the ordinary course, be placed at the disposal of the decision maker”.

The important thing remains that your rights as the “non-building neighbour” just got a lot stronger. Protect them!

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For more information contact the professional team at Goldberg & de Villiers Inc on 041 5019800.

 

CONVEYANCING FEES: WHAT ARE YOU PAYING FOR?

If you are a first time home buyer and new to the home buying process, you may not be familiar with the conveyancing process, which parties are involved and who pays the costs.

Conveyancing is the legal process whereby ownership of immovable South African property is transferred from one party to another.

The seller has the right to appoint a Conveyancer, of his choice, to attend to the transfer of his immovable property, although this, like other aspects of a Sale Agreement, can be varied by negotiation between the parties.

Conveyancing can be a complicated process and requires specialist knowledge and accuracy – particularly in less straightforward transactions that include things like subdivision or consolidation of properties, or the registration of servitudes.

Because of this, only an attorney who has undergone further qualification by passing the national conveyancing examination is allowed to perform these services.

A Conveyancer is therefore an admitted attorney who has passed a specialised conveyancing examination and has been admitted as a Conveyancer by the High Court of South Africa.

The first step in the sale of immovable property is the conclusion of a valid Agreement of Sale.  Sellers and buyers would be well advised to instruct an experienced Conveyancer to review the Sale Agreement on their behalf, to ensure that it meets their specific requirements and to ensure that the said Agreement optimally provides for the protection of their interests.

The Sale Agreement is handed to the appointed Conveyancer, who will draft the necessary documents. Both the seller and the purchaser will be required to call at the offices of the Conveyancer to sign the necessary documents.

The costs relating to the transfer of fixed property will normally entail Transfer Duty or Value Added Tax.  Transfer Duty is a form of tax payable, by the purchaser, to SARS and is calculated on the value of the property.  Where the seller is registered as a Value Added Tax vendor in respect of the property, Value Added Tax will be payable in respect of the transfer of the property.  If Value Added Tax is payable in respect of the transaction, no Transfer Duty will be payable. The amount of Transfer Duty which is payable is calculated according to a formula based on the value of the property.  Transfer Duty normally constitutes the majority of the costs of the transaction.

Rates and levies must also be paid in full on date of transfer.

The Conveyancer’s fees are prescribed by a tariff and are calculated on a sliding scale based on the purchase price.  The purchaser is normally liable for payment of these fees.

Where a bond is to be registered, the Conveyancer’s fees are prescribed by a tariff and are calculated on a sliding scale based on the amount of the bond and are normally payable by the purchaser.

If the seller has a bond registered over the property, the said bond must be cancelled on transfer, and the seller is responsible for payment of the Conveyancer’s fee for cancellation of the said bond.

Once the documents have been signed by the purchaser and the seller, and the transfer costs, transfer duty and rates and levies have been paid, the Conveyancer may proceed with the registration of transfer of the property, in the Deeds Office.

The above constitutes an outline of the normal conveyancing process.  Other complexities, occasioned by subdivision and consolidation of properties and the registration of real rights may also arise. The sale of one property can often not take place until the purchaser has sold and transferred his property and so on. Conveyancing is in fact a complex process and requires extensive knowledge and accuracy on the part of the Conveyancer.

The period of time it will take to register a transfer depends on the co-operation of the parties and the extent to which they have complied with their contractual arrangements.

In view of the critical role which a Conveyancer plays within the conveyancing process it is recommended that sellers apply proper care when selecting a Conveyancer to attend to the transfer of their property.

At Goldberg & De Villiers the directors in our Property Law Department, namely Adri Ludorf, Tracey Watson-Gill and Bardine Hall and and a team of 8 highly skilled paralegals will gladly assist you with any of your Property Law related needs. Contact them on 041 501 9800.

 

PROPERTY BUYERS: BEWARE UNLAWFUL OCCUPIERS!

You are it seems in good company if you view times of depressed property prices and general uncertainty as a great buying opportunity.

Just be aware that if it is a house you are after, whether as an investment or to live in, you should do your homework if the property is (or might be) occupied. Generally speaking, buying a property with occupiers is fine if you know about them and have a binding deal in place with them.

But, as a recent High Court decision illustrates, if you aren’t aware of occupiers and/or don’t have a proper agreement in place with them, you could find yourself unable to evict them even if you buy the property “free of lease”.

Before we discuss the case itself, it is important to know that to get an eviction order from a court, you need to prove in terms of PIE (the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act) both –

  1. That the occupants are “unlawful occupiers” and
  2. That it is “just and equitable” to grant such an order after considering all the relevant circumstances.

The Bo-Kaap flat, the sale in execution, and the occupiers

  • A property investor bought a flat in a sectional title development on a sale in execution. As we shall see below, the history of the flat’s ownership, and its location in Cape Town’s historic Bo-Kaap area, were relevant to the outcome of this matter.
  • The Sheriff of the High Court sold the flat for R375,000 “free of lease”, but also with “no warranty that the Purchaser shall be able to obtain personal and/or vacant occupation of the property or that the property is unoccupied and any proceedings to evict the occupier(s) shall be undertaken by the Purchaser at his/hers/its own cost and expense….”
  • The people living in the flat refused to leave or to “legalise … their rights to the property”, and the investor applied to the Court for their eviction.
  • The eviction order was refused firstly because the investor was unable to prove that the persons it was trying to evict were “unlawful occupiers” for lack of information as to –
    • Who the occupants of the flat actually were, with the result that “the court has scant knowledge of essential details of the occupiers of the property in circumstances where these are material to the exercise of the court’s discretion under the provisions of PIE”. Crucially, there was nothing before the court as to the ages or circumstances of the occupiers, so it was unable to consider “all the relevant circumstances including the rights and needs of the elderly, children, disabled persons and households headed by women”.
    • When and under what legal right the occupiers originally took occupation (lease, right of habitation, usufruct etc), when that right was terminated and under what circumstances. Note that timing is important here because once unlawful occupation has lasted for more than 6 months, the question of relocation to land supplied by the municipality or government becomes relevant.
    • Whether or not the occupants had any form of written or verbal lease. That’s important because of our law’s “huur gaat voor koop” principle – literally “lease goes before sale”, meaning that you are generally bound to honour an existing lease (there are a few exceptions – take specific advice).
  • Secondly, the investor failed to convince the Court that it was “just and equitable” to grant the eviction.

Again, the lack of information as to the occupiers was relevant, and the Court’s comments on the particular facts of this matter are worth noting in full (our emphasis): “The residents of the area are, generally speaking, not wealthy and Bo-Kaap is home to many poor and working-class people. An eviction of the type sought in this matter, in which a group of related persons appear to occupy a family home that was acquired from the City of Cape Town some time ago, might well render them homeless or at the very least require them to relocate to one of the outlying suburbs that are now home to the many who fell foul of the Group Areas Act. If those circumstances obtain, a court would be required to think long and hard about the justice and equity of ordering people to vacate a dwelling, long occupied, which has been snapped up by a buyer distant to the neighbourhood for investment or development potential. Certainly, it is to be expected of such buyers that when they seek to move established families out of their homes, they do their homework properly and place all relevant facts before the court.”

Do your homework, and do it properly!

Investor or not, the Court’s warning to do your homework applies to you. Establish whether anyone is living in the house, exactly who they are, how long they have been there, and on what basis.

Bear in mind that because leases need not be in writing, you could find yourself battling occupiers who claim to be tenants under a verbal lease. Without a written record they could well claim to be entitled to pay minimal rent and to have many years left on their “verbal lease”.

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So first prize will always be to reach a written, water-tight deal with any occupants before buying – Phone Tracey Watson-Gill at Goldberg & de Villiers on 041 501 9800 for professional legal assistance.

PROPERTY DEVELOPERS BEWARE: DEEMED ACCRUALS CAN SERIOUSLY DISRUPT YOUR CASH FLOW

 

“Never take your eyes off the cash flow because it’s the lifeblood of business” (Richard Branson)

A recent Supreme Court of Appeal (SCA) judgment has confirmed that when a property developer enters into an agreement with a buyer to transfer the property, even if the developer only actually gets paid in a subsequent tax year, the income is deemed to have accrued to the developer at that date. The developer must therefore include the full proceeds of the sale in its income tax return for the year the agreement was signed.

This has the effect of the property developer paying tax before receiving the proceeds of the sale, putting the developer out of pocket until transfer to the purchaser takes place.

A R1.9m tax assessment challenged

A property developer in Cape Town entered into sales agreements for 25 units. Each agreement called for a deposit of R5,000 with the balance of the money to be paid on completion of the development. Purchasers could take possession once the full sale price had been secured or within 60 days of the sale. By the end of the first year 18 purchasers had taken possession and in all 25 cases the purchase price had been fully secured.

Transfer of the properties took place in the next tax year. The developer did not include the sale proceeds in his tax return for the year of concluding the agreements but showed the proceeds in the next tax year.

The Court upheld the decision by SARS to tax the developer in full in the first tax year. The assessment at just under R1.9m was based on taxable income of R6.8m.

Why the developer lost

Property developers assume a substantial risk when they undertake a development – they spend millions of Rand upfront and if they can’t sell the developed properties they make a considerable loss. They mitigate this risk by selling the properties upfront – usually before they commit to building. Clearly they will not get paid until the property is transferred, so they accept a deposit plus a guarantee (usually from the purchaser’s banker) for the balance of the selling price, or alternatively the buyer placing the funds in the conveyancer’s trust account.

Once the developer is assured of selling the properties it then proceeds with the development. On this basis, banks will advance the cost of the development to the developer.

However, in terms of the law as now confirmed by the SCA, the proceeds of the sale of the properties are deemed to have accrued to the developer and are taxable in the year the agreement is signed.

Developers need to be aware of, and plan for, the cash flow implications.

For more information, contact the professional legal team at Goldberg & de Villiers Inc on 041 501 9800.

BEWARE THE BUILDING DEADLINES WHEN BUYING-TO-BUILD

Here’s yet another warning from our courts to take seriously the building deadlines commonly imposed on buyers of plots in residential estates.

Failure to comply with them could expose you to heavy fines, recurring penalties and even the risk of losing your plot altogether.

  • A Home Owners Association (HOA) imposed “double levy” penalties totalling R105k on the owners of a plot when they failed to start development before deadline.
  • Taken to court, the owners challenged the validity of the penalties on a variety of technical and other grounds, but failed on every count.
  • The end result is they must now pay the penalty levies, late payment penalties, and attorney-and-client legal costs for both the original magistrates’ court hearing and for the unsuccessful appeal to the High Court.

3 lessons for HOAs and buyers

The HOA’s victory in this case highlighted several important factors that both HOAs and buyers would do well to take note of –

  1. The HOA’s power to raise “recurring penalties” was upheld only because of the wording of its articles of association. They specifically gave the HOA the power to “impose a system of fines or other penalties”. Had the wording only allowed “a fine”, its attempt to impose a recurring penalty would have been shot down (exactly that happened to another HOA in an earlier case).
  2. Penalties must be proportionate to the prejudice suffered by the HOA, but courts are unlikely to interfere unless “the penalty is unduly severe to an extent that it offends against one’s sense of justice and equity”. Here, the double-levy penalties were upheld because the “ongoing delay in developing their property in accordance with their obligation … prejudiced the underlying rights of other owners … to enjoyment of a fully developed estate.”
  3. The title deed gave the HOA the right to claim the plot back for breach of the building clause, but, held the Court, that right did not replace the right to claim penalties; it was an additional right available to it.

The bottom line for “buy to build” plot purchasers is this – make absolutely sure before buying that you will actually be able to build by deadline.

Before entering into any contract, contact the team at Goldberg & de Villiers Inc on 041 501 9800.

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TEN THINGS TO LOOK FOR WHEN BUYING A HOUSE

Buying a house is a bit like planning for your wedding day — there are months packed with excitement, stress, planning, and then, finally, the big payoff.

1. Recognise a roof in need of repair

Before you ever set foot inside, check out what’s happening on top. Does the roof look relatively new or is it caving in? If the roof is eye-catching (as in, “My, look at that gaping hole”), chances are it could end up costing you.
A newer roof, on the other hand, could mean a lower homeowners insurance rate. Likewise, a roof made of an especially sturdy material is better equipped to defend against wind and hail (and can save you from a potential claim).

2. Don’t judge a room by its paint job

When you step inside your prospective abode, focus on the structural stuff — aging appliances, loose wires — and tune out any freshly painted walls or upscale decor. The foundation will be there long after the paint has started chipping and you want that to be what lasts.

3. Look at the municipal plans

Get a copy of the approved building plans from the municipality or the owner and check that all structures on the property are on plan. This could save lots of money in the future if you decide to do renovations and find that there are structures which are not approved and may possibly never be approved.

4. Decide on your dealbreakers

Aside from the basics, like quality windows and countertops, think about the purpose of your home and the requirements for your lifestyle, like storage for a large book collection or a big entertainment area.
It can also be smart to spring for a home with an extra bedroom if you’re planning on kids or guests. And if your significant other is a night owl while you’re a connoisseur of cat naps, it might be a good idea to look for a house with an entertainment area set far away from the master bedroom.

5. Plumbing: what lies beneath

When you’re poking around a new kitchen, don’t stop at eye level — get underneath the sink and examine those pipes. Check for leaks, water damage, and mold.
Not only is mold unsightly and foul-smelling, but it can also cause health problems. If you live with a baby, an elderly person, or someone with asthma, you’ll want to be especially careful before moving in with mold.

6. Check out the land beforehand

Don’t just look at the building — examine the area around it. Is the house in an area prone to flooding or wildfires? Is the driveway shared with another property? If there are fences, have they been built and positioned properly? It’s a lot to take in, but when you buy a house, you can’t ignore its surroundings.

7. Smell the roses (and more)

Do you smell sewage, gas, or anything equally unpleasant? Sewage systems in older homes can sometimes get clogged or damaged by tree roots. Luckily, some sewer or plumbing companies can send a camera through the pipes to detect any breaks or blockages.
Also worth noting: pet odors, cigarettes, and mildew.

8. Invest in a well-insulated house

Above all else, your home should be comfortable. Check the ceiling, water pipes, and heating ducts to make sure they’re properly insulated. This can reduce heating and cooling costs and keep you comfortable in summer and winter. Double-paned windows can also save you money down the road. Plus, they can help soundproof your place from outside noise.

9. Get your hands on everything

I mean that literally. Turn on every tap and light switch, open every window and door, flush the toilets, even taste the water. Buying a house is a big step — maybe one of the biggest — and you need to know how everything works firsthand. That way, you can address problem areas and see if there’s a cost-effective solution.

10. Have a home inspection done

There’s only so much you can do with your own 5 senses. You’ll also want to enlist a professional to ensure the foundation is solid. If there is a lot of wood in the building/s, make sure that you request a borer beetle certificate and ensure that the relevant clause is incorporated in your offer to purchase.

For professional legal advice, contact Goldberg & de Villiers Inc on 041 501 9800.

 

CAN I TERMINATE MY LEASE EARLIER?

Life is unpredictable and sometimes it becomes necessary to terminate a lease agreement entered into for a fixed term earlier. Can a tenant give notice to the landlord to cancel the lease before the agreed fixed term of the lease has run its course?

The first point of departure is to read the lease agreement. Sometimes leases have clauses providing for an early termination notice period. If there is no such clause the lease may only be cancelled in situations where the parties agree to the termination or in the situations where the Consumer Protection Act applies.

The Consumer Protection Act (“the Act”) applies to the supply of goods and services within South Africa. Residential leases fall within the definition of services where the landlord leases the property in the ordinary course of business.

Unfortunately it is not yet clear how our courts will interpret this definition in respect of residential leases.

If your landlord is a property developer with a letting business with a whole selection of apartments or houses, the lease will definitely fall under the Act. It is not so clear whether a private homeowner who rents property on a temporary basis will fall within the definition.

When the Act applies

The application of the Act is further excluded where the lease is concluded between to juristic entities and where the tenant has an annual turnover or asset value of more than R2 million Rand.

If the Act applies to the lease, the tenant may cancel a fixed term lease for any reason by giving the landlord 20 business days written notice of the cancellation.

“Business days” means weekends and public holidays are not counted. If the tenant cancels the lease before the lease would have ended in the ordinary course then the landlord is entitled to a reasonable cancellation penalty.

In order to determine a reasonable penalty the following factors must be considered:

  • the rental amount which the tenant stills owes the landlord up to the date of cancellation;
  • the value of the lease transaction up to the date of cancellation;
  • the duration of the lease agreement as initially agreed upon by the parties;
  • losses suffered or benefits accrued by tenant because of the tenant entering into the lease agreement;
  • the length of the notice period given by the tenant
  • the length of the period within the land lord would be able to find a new tenant
  • the industry practice

Between one and two months rental would probably be considered reasonable.

In cases where the Act applies to a lease, a landlord can only cancel a tenant’s lease if the tenant has breached the lease and if after having given 20 business days written notice to the tenant to remedy the breach, the tenant has failed to do so.

Consult an experienced property attorney before sending breach and/or cancellation and/or early termination notices. Contact  Goldberg & de Villiers Inc on 041 501 9800 for advice.

CAN I HAVE PETS IN A RESIDENTIAL COMPLEX?

 

“I never married because there was no need. I have three pets at home which answer the same purpose as a husband. I have a dog which growls every morning, a parrot which swears all afternoon, and a cat that comes home late at night” (Marie Corelli, English novelist)

Residential complexes and estates are becoming more and more popular for the many advantages they provide. Remember however that – in everyone’s interests – they also come with restrictions on your freedom to use and enjoy your property, and that you bind yourself to whatever Conduct Rules apply in your community scheme.

One of those restrictions is likely to be your right to keep a pet, and that’s a topic that can be a source of much conflict and unhappiness.

Residents tend to fall into one of three camps

  1. “I really need to have my little dog/cat/parrot/lizard living with me”
  2. “I simply cannot handle any more of that parrot-screeching/lapdog-yapping/midnight-cat-yowling – it has to go!” or
  3. “Pets – don’t need them myself but hey, fine so long as they don’t cause me any trouble”.

Regardless of which category you fall into, it’s important to understand before you move into any form of residential complex whether or not you and other residents are allowed to keep pets, and to obtain any necessary prior authority to do so.

Sellers, buyers and estate agents would do well to address this specifically in sale agreements to avoid disappointment and dispute down the line.

Sectional title schemes

Your Body Corporate has the right to impose limits on pet ownership. It can for example prohibit pets altogether, or it can impose limits on the number of pets allowed, types of pet, breeds or sizes allowed, access to common areas, noise-control, replacement on the pet’s death and so on. Trustees should take care here to define clearly what is allowed and what isn’t. Are only dogs banned or also cats and cage birds? What about pet pigs? Guide dogs? Hamsters? Pet snakes? Goldfish? The more detail the better.

You need to find out exactly what rules apply in your particular complex, but the standard “Prescribed Conduct Rule” below will be in force unless your Body Corporate has amended it. This Rule reads –

“Keeping of animals, reptiles and birds

  1. The owner or occupier of a section must not, without the trustees’ written consent, which must not be unreasonably withheld, keep an animal, reptile or bird in a section or on the common property.
  2. An owner or occupier suffering from a disability and who reasonably requires a guide, hearing or assistance dog must be considered to have the trustees’ consent to keep that animal in a section and to accompany it on the common property.
  3. The trustees may provide for any reasonable condition in regard to the keeping of an animal, reptile or bird in a section or on the common property.
  4. The trustees may withdraw any consent if the owner or occupier of a section breaches any condition imposed in terms of sub-rule (3).”

Note that where this Prescribed Rule applies unamended, the body corporate is specifically required to act “reasonably” in all the circumstances of each matter. That entails a delicate balancing act between the competing rights of pet-owning residents and their neighbours, which means grey areas and fertile ground for dispute.

Hence the advice to get clarity on your rights before buying into a complex.

Home Owners Associations (HOAs)

HOAs have similar rights to restrict the keeping of pets, but no “Prescribed Rules” apply as they do with sectional title and their powers will depend on whatever founding documentation underlies them. HOAs normally govern free-standing estate houses rather than apartments and so are perhaps more likely to be pet-friendly but again, find out what the complex’s Rules say before you buy.

Trustees barking up the wrong tree? Polly ruffling feathers? The ADR alternative

If you find yourself embroiled in a dispute with your body corporate/HOA or a fellow resident or owner, first prize will of course always be a chat over a friendly cup of coffee to find common ground and a win-win outcome.

If that fails, the (relatively) new Community Schemes Ombud Service provides an alternate dispute resolution (ADR) service designed to assist with just this sort of situation. Contact the professional legal team at Goldberg & de Villiers Inc on 041 5019800 for help in any doubt.

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