Ask a lawyer – Can the body corporate refuse Labrador guide dogs?
Can a managing agent and body corporate decline a Labrador guide dog for a blind child in a complex whereby pets are permitted but the rules are clear that the dog may only be 30cm in height?
The short answer to this question is unequivocally “no”! Restrictions on the guardianship of animals is designed to minimise nuisance, however an absolute prohibition on the keeping of pets militates against the sectional owner’s true ownership of his section and should be justified only in exceptional circumstances.
Our courts have definitively expressed that the wording of the prescribed conduct rule dealing with pets implies that the trustees are obliged to consider each case or application for the keeping of pets on its own merits.
Body Corporate of the Laguna Ridge Scheme No 152/1987 v Dorse is the most famous judgment in this regard where it was held that the decision of the trustees to refuse permission for the pet to be kept on the premises was heavily influenced by policy considerations rather than contextual circumstances pertaining to the particular dog and whether its presence in the respondent’s apartment could possibly constitute a nuisance.
The court therefore found that the trustees’ decision was grossly unreasonable and warranted the inference that they had failed to apply their minds to the matter, and ordered that the owner should be allowed to keep the dog in her apartment.
In this case, the merits are even more clear-cut. Any potential nuisance which a guide dog might cause is far outweighed by the benefit – indeed, necessity – for the blind child to be allowed to keep the dog.
In fact, I would go as far as to say that to deny the child the right to keep the dog transcends any pet-related concerns; and, in essence, involves obstructing a blind child from keeping a medically necessary tool.
The addition of a 30cm height limitation is entirely arbitrary as it seeks to preclude anyone from having a larger guide dog prior to assessing the circumstances of the individual case.
Should the trustees or managing agents attempt to enforce the rule on that basis, one may apply to have the rule declared invalid and unenforceable on the basis that it removes the obligation of trustees to examine each case on its merits, and therefore it is unconstitutional.
In the circumstances, I have absolutely no doubt that the body corporate may not refuse consent to keep the guide dog; especially since guide dogs are all exceptionally well-trained and thus pose little to no threat of nuisance to any neighbours.
If the trustees do, however, refuse to grant consent, one may approach court for interdictory relief to compel them to do so, and the prospects of succeeding in such an application would be very high. Should the managing agent and/or trustees refuse to acquiesce, a strongly worded letter explaining the legal position ought to swiftly end the matter.
And if the complex says “no more pets permitted”?
Although the trustees have the power to limit the number of pets per section, they may not limit the number of pets in the scheme as a whole as the rules must be applied equally to all owners put to substantially the same purpose.
If one owner is allowed to keep a pet, then the same consent must be given to all owners – subject, perhaps, to the imposition of restrictions regarding potential nuisance, of health and safety concerns, as long as the restrictions are reasonable and justifiable.
Who is Marlon Shevelew?
Marlon Shevelew is the director of Marlon Shevelew and Associates Inc, a law firm specialising in rental property, sectional title, contractual, consumer and company law. The firm is the recipient of more than 45 international property law awards. Marlon is the current author of PayProp’s rental documentation and preferred rental property attorney to the Institute of Estate Agents South Africa (IEASA), the Rental Housing Tribunal Western Cape, presenter of the Advanced Residential Property Law Seminar endorsed by the University of Cape Town and the director of the top rental property law firm in the country, according to several international publications. Marlon also created the unique Rental Retainer Club and RentDoc which offers clients affordable legal fees for rental property-related matters. Marlon is contactable on firstname.lastname@example.org anytime for more information on these services.