Save Sweet Sophie! A Case Study of Trustees Withdrawing Consent
By Carryn Melissa Durham
Paddocks received a post on its Facebook wall last night which touched the Paddocks FaceBook Fans and has inspired the Paddocks team to write this blog post.
Tandi Rowe wrote on FaceBook:
The question is therefore:
Once the trustees have consented in writing to the keeping of a pet (in this case a “sweet cat” called Sophie), under what circumstances can such approval be withdrawn?
The starting point is to consider whether the applicable scheme has adopted its own rules or whether they adhere to the Prescribed Conduct Rules (PCR) in Annexure 9 of the Sectional Titles Regulations. I am assuming that the scheme in question has adopted the PCR. PCR 1 sets out the rules relating to the keeping of pets. 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.
(3) The trustees may withdraw such approval in the event of any breach of any condition prescribed in terms of sub-rule (2).”
The critical issue here is whether it was reasonable for the trustees to withdraw their approval.
It appears that under the circumstances it was not reasonable.
My reasons for coming to this conclusion are:
- Trusteeship is not a dictatorship. The trustees’ decisions and actions always need to be reasonable and should take into account the opinions of the members of the body corporate.
- When the trustees granted approval for the keeping of Sophie they were entitled to prescribe any reasonable condition. Cats, by their inherent nature are prone to prowling. In my opinion it is not a reasonable condition to expect a cat to remain indoors all day as was shown when someone suggested that she keep the cat indoors.
- Reasonable conditions would include that the cat may not cause damage to the common property, cause harm or nuisance to other residents or pets; but there is no evidence in the information before us that this took place.
- The owner took reasonable steps (in fact some would say stringent measures!) to avoid the cat from venturing on to common property as was shown:
- It therefore follows that there could not have been any breach of a reasonable condition as outlined above, as the condition itself would then appear to be unreasonable.
- It is important to note that this case study does not involve a rule-change situation where a blanket ban on the keeping of pets is purportedly created. The trustees are in fact withdrawing permission only from Tandi by demanding the removal of Sophie.
- Rules must be reasonable and must apply equally to all owners of units put to substantially the same purpose (section 35(3) of the Sectional Titles Act). There are other cats and birds on the common property as is evidenced by:
- The trustees would then have to withdraw permission from all owners and residents to keep cats as it seems that Sophie is not the only kitty wandering onto common property.
In principle where the trustees have reasonably, after following due process, withdrawn their consent to keep a pet the person concerned is then not entitled to continue keeping that pet in the scheme. However, the enforcement of this is not so simple for the trustees. The body corporate is not entitled to forcibly remove a pet from a person’s possession. This can only be achieved by an order of court. Therefore, I feel Sophie is safe from eviction for now…
The Paddocks FaceBook Page has been going crazy with support for Sophie and Tandi. What are your thoughts on this issue? Share with us by commenting below…
Thinking Inside the Box 
This is an amazingly one-sided presentation of this issue. The tone (“sweet Sophie”) is also nauseating. Is this the quality of writing on sectional title issues that we can look forward to in future? If so, I’ll be doing most of my reading elsewhere.
Does a [sectional title] Arbitrator have the power of a Court, to have animals removed??
[We have a longstanding problem with dogs barking as people pass the unit…and complaints are persistent. Bought as pups ‘for the kids’ [who have now ‘got other things to do’], the parents are at work. They are not taken for walks as the SPCA Inspector [who said they were [otherwise] not being maltreated] recommended …….[hope you’re not going to say that we should install a CCTV to prove that they are not being taken for walks………]
As a matter of reality cats are notorious problems in complexes. They cannot be controlled and wander around the complex, into peoples units (yes they do steal food), defaecate in other peoples gardens and scratch cars. That is simply a fact. Most rewritten rules bar cats for this reason and insist that no animals are allowed to wander around the common property. Simply put cats are not controllable. As it happens I actually have cats of my own. Cats are simply not suitable animals for complexes. I cannot believe that the cat only wanders around the common property and if it goes into other peoples yard it is a nuisance to those owners.
Where schemes have allowed cats this rule has always been changed within a relatively short time.
Having been a managing agent since 1980 where there are cats there is discontent.
Mike Spencer, Platinum Global, Bloemfontein.
Indeed the trustees version must be known before conclusions can be made:
Are the kitty in question spayed, because that is the first basic requirement that trustees may or rather should impose.
What was the complaints of other residents?
In complexes you frequently hear complaints of a cat “marking” the area inside another resident’s unit, even a few unit’s.
Had a complaint, that when heard at first were funny, but for the owner complaining it was serious at the time – she was preparing supper for Christmas Eve and when she turned around saw this big cat trying to take half prepared turkey, that was on the food preparation area, for a walk out the door. Could imagine that this lady were furious.
This is one of the three sensitive “C’s” in Sectional Title – Cats,Children and Cars. And you can include Cash.
Hi.
I like Anne greening’s comment above.
Being a managing agent and ST arbitrator I find that cats are usually more problematic than dogs in complexes
Thandi managed very successfully to gain emotive support and congratulations for achieving that but one must remember that the conditions may have been that Sophie cannot roam the CP. In which, case the Trustees are simply upholding their imposed condition. To believe that Sophie only roams the CP and does not enter other flats and or does not sleep on the nice warm bonnets of cars is , in my opinion, stretching the realms of reality.
Come on trustees please give us your reasons as I, for one, would like to back your decision
Dave James
Thank you Dave for putting a reasonable argunent. At our complex we had two pairs of cat owners who owned four cats between them. Before they came we had quite a lot of bird life in our garden: the cats exterminated it. They also wandered freely into any open door or window thhey could find.
Too often I have heard (from people like these owners) that “cats cannot be controlled”. If that is indeed true, then cats are a species that is unsuitable for sectional titke scheme living.
Whilst I have every sympathy with Thandi, I do not believe we should condemn the actions of the trustees without hearing their side of the story (and there are always at least 2 sides to every story!) It would be interesting to hear what their reasons were for withdrawing permission (after all, in law the accused is entitled to be heard).
There are THREE sides to every story – your side, my side and the truth that is somewhere between your and my sides.
Cats always have been and always will be a problem. Witness the night that my two Yorkie crosses suddenly became restless and went down stairs. A few minutes later a screaming cat bolted up the stairs followed by two yowling dogs. The cat ran straight up the curtains and sat on the pelmet spitting at the dogs. The cat then attacked me when I tried to get it down. When I phoned the owner I was told “Foxtrot Oscar – it is not my cat. “ What about the night that I left meat in my kitchen, defrosting for tomorrow? What about the NUMEROUS nights of cats “performing” in the common area while they are “performing”? Why the hell must I spray my unit with concentrated ammonia?
Sorry, Thandi, you do NOT get my vote! I need to sign myself “An Ex-trustee who got totally xyzed off by all the politics in our complex after about 12 years thankless service.
Die Beheerliggaam is nie altyd so ongenaakbaar en onredelik soos mens in die algemeen hoor nie. Ons hoor hier net die een kant van die saak. Wanneer ‘n eienaar ‘n diere-aansoek voorlê, word skriftelike goedkeuring gewoonlik met sekere redelike oorwaardes gegee. Die dier mag dan bly tot sy dood toe, waarna hy nie weer vervang mag word nie. Hierdie reël en voorwaardes moet ingesluit wees by die regulasies, wat geregistreer moet wees.
Daar moet dus ‘n baie geldige rede(s) wees om hierdie goedkeuring terug te trek. Die diere-eienaar het die reg om op skrif te weet, wat presies tot die drastiese stap aanleiding gegee het. Indien mede inwoners oor die kat gekla het, moes hulle dit ook op skrif gestel het, en daardie Beheerliggaam moes alle klagtes aan die diere-eienaar oorhandig het om hulle besluit te staaf. Die Beheerliggam moet ook eers die diere-eienaar net weer op die voorwaardes attent maak, en dan ‘n redelike tyd toelaat sodat die diere-eienaar self die probleem kan oplos. Nooit sal enige Beheerligaam sommer net ‘n troeteldier waarvoor daar reeds goedkeuring gegee was, die dier summier laat verwyder nie.
Nuwe intrekkers moet altyd eers kennis neem wat die regulasies is, voordat hulle in n kompleks kom vestig.
Cats are roamers period. Not all cats can be kept indoors. I own a Chinchilla which are indoor cats. My burglar bars was made in such a way that my cat and other cats cannot enter or exit.
What did poor Sophie do to be evicted? If cats are neutered/spayed they do not tend to wonder. So what if the poor Sophie wonders onto common property. I personally think the trustees are unreasonable and small minded. Reading the history I think the owner took enough precautions and unless Sophie attacks or wonders inside other units and rip their belongings apart, proof needs to be obtained with photographs that she entered the unit there is not enough reason for this.
As chairperson for our complex for the past 10 years my answer to all residents are keep your windows closed when not at home and if at home you should be able to control stray cats. If for any reason you do not like cats make a solution of very strong Scrubs Ammonia and spray that on your walls. The cat will automatically think there is a bigger cat on the other side and will not enter. Alternatively use a spray bottle with COLD water and spray the cat with this. They soon get the message and leave.
I have two cats and manage to get them inside by 9 each evening. My neighbours mostly love them!
Liz
Absolutely unreasonable of the trustees. It seems like a personal vendetta against her and the cat. She must stand her ground, and give the trustees and the managing agents a copy of yourmemo.
Thanks for Paddocks for stepping in and giving this remarkable and enlightening advice. It’s so refreshing to come across a proactive, humane corporate business. I salute you as does Sophie with her paw 🙂 We will let you know what the outcome is once I find a lawyer to write a contesting letter on my behalf (offers welcome xxx)…
You’re welcome Tandi! Thank you for your generous compliments 🙂 Carryn, who wrote the blog post has just started at Paddocks as a lawyer and is currently doing her Doctorate in Sectional Title! If you want to get her to write you a letter you can contact her on 021 686 3950 or consulting@paddocks.co.za. High five to Sophie’s saluted paw 🙂
Thank you for this most useful information.
You’re welcome Liz! Glad you find it useful 🙂
Tandi – I will see if an attorney friend of mine will write a letter for you. I will email her now, 5.01 pm on 07/01/14, and will let you know.
Thank you so much. My email address is brandcartelinfo@gmail.com
So it looks like Sophie is here to stay! Yay!