In September 2014 the Durban High Court made an Order in a matter regarding a very upmarket golf Estate in Umhlanga, which affects Home Owners’ Associations and Sectional Titles Schemes alike.
. . . and it all revolved around a beautiful St Bernard called Theodore. Or did it?
The Judge’s opening remarks are worth quoting:
“This case has gained a measure of notoriety upon the basis that it concerns a rather striking Saint Bernard dog named Theodore. But . . . the case is not about the dog. It is about human conduct, the consequences of voluntary submission to special rules and regulations and the duties of those who are elected arbiters when the enforcement of such rules are at issue”
Like many Conduct Rules do, the Estate Rules required that owners must seek the written permission of the Directors for a dog to be kept at the scheme.
In this instance the Directors had a discretion to grant permission as long as the dog was:
- small;
- not of a known aggressive breed; and
- would not exceed 20 kg when fully grown.
Theodore was brought onto the Estate by the owners of a unit in the Estate in 2014 when he was a puppy.
Because Theodore is a St Bernard, which is a breed known to easily reach 75 kg when fully grown, the Directors denied the owners’ application to keep him at the Estate.
Theodore’s owners took the Home Owners Association to Court in an effort to compel it to allow him to stay on the basis that the Directors had not exercised their discretion properly.
However the Court eventually ordered that Theodore be removed from the Estate.
The Judge emphasised that where persons buy into associations (and by implication Sectional Title Schemes) they bind themselves to the Conduct Rules, as well as other Rules relating to living in the Estate.
He said that when you buy a unit in an Estate you voluntarily enter into a contract with both the association and all the members of the association. As with any other contract, you have to abide by the terms of the contract.
The Judge also examined the existence of special circumstances, such as when a blind person buys a unit in a scheme. In this instance the Trustees should (and in fact must) be able to exercise a reasonable discretion to make an exception to the general rule and allow the owner to bring his guide dog with him.
I’ve often heard pet owners claim that they have a “Constitutional Right” to bring their pet into a residential estate or sectional title scheme and NO ONE is going to stop them. In a much earlier case a Judge remarked that a person has a Constitutional Right NOT TO BUY INTO A SECTIONAL TITLE SCHEME, BUT IF HE DOES, HE MUST ABIDE BY THE RULES OF THE SCHEME!
CONTACT JONTY at jleon@ibalaw.co.za OR KAREN at kbleijs@ibalaw.co.za
