The Community Scheme Ombud Service (CSOS) was established in terms of the Community Schemes Service Act (CSOSA), 2011 (Act 9 of 2011). One of its aims is to regulate the behavior of residents in a community scheme by resolving disputes that are brought to the CSOS by an owner or resident seeking relief for any issue that is found in section 39 of the CSOS Act.
A recent CSOS Ombud adjudication order has highlighted the need for clearly written and worded conduct rules that can only be enforced if the changes made to the prescribed conduct rules found in the legislation have been approved by the CSOS Chief Ombud as required by legislation and stamped with the required approval date.
The adjudication order shows the principles that should be used by scheme executives when using their discretion in considering a consent application for allowing an owner or resident to keep a pet in the scheme, in this case a dog.
Often prospective buyers enquire from the sales agent or the seller about the probability of consent being provided to allow them to keep a pet. The seller should always provide the approved scheme rules (and be sure that such rules are correctly approved) on request to ensure that the prospective purchaser cannot claim to have been misled.
In this case the CSOS adjudicator ruled against the decision by the trustees of the scheme not to consent to an owner keeping a dog in their property.
The applicant contended that she had been informed prior to her purchasing her unit that the scheme was pet friendly, and that in the conduct rules that she was provided it states that pets are allowed with trustee consent and that “dogs are only allowed on the common property if controlled by a leash”. Prior to the sale, the seller was informed by the Managing Agent and the trustees in writing that this had been decided in the past and so a precedent had been set that dogs are not allowed in the scheme.
When the new owner applied the trustees decided on the basis that owners at the AGM had directed in the past and at the most recent AGM that the majority of the owners were in favour of a blanket ban on dogs being allowed in the scheme, and that precedent in this regard had been set as no dogs had been allowed since the scheme was established in 1996. At the AGM held after the new owner had taken transfer, it was decided by a vote of 93.6% in favour and 3.35% against that dogs would not be allowed. Following the AGM decision by owners, the trustees decided that they had received sufficient votes to amend the conduct rules, and so submitted amended conduct rules to the CSOS that banned dogs.
The applicant then sought an order from the CSOS setting aside the decision of the trustees denying her permission to keep her dog as a pet and that the resolution taken at the trustee meeting was invalid.
When the adjudication was heard the amended conduct rules had not yet been approved by the CSOS and so the adjudicator determined that the existing conduct rules would be used to decide the matter. In this regard the trustees needed to consider each application for a pet to be allowed on its merits and could not use precedent to guide their decision as they had, The trustees could also not use past decisions or refuse the application on a blanket basis as they must be shown to have acted reasonably as required in the prescribed conduct rules in their enforcement and to have carefully considered the application.
Trustees must consider each case individually. This was decided in Body Corporate of The Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D) where it was held that the trustees are obliged to individually consider each request for permission to keep a pet, and where they must base their final decision on the facts and circumstances of the particular application.
Trustees of a scheme are not entitled to refuse an application on the basis that they are afraid of creating a precedent, or that it would create disharmony among residents, or that it may lead to allegations that the trustees were not doing their job.
In this case the adjudicator found the trustees to have been grossly unreasonable and to have failed to apply their minds and not exercised their discretion when they refused permission for the owner to keep a small dog. “The current Rules do not create an absolute ban on the keeping of pets but rather grant the Trustees the discretion to consider such applications. Considering the above principles laid down by the court in the Laguna Ridge matter, it is clear that the Trustees took irrelevant considerations into account, and they ignored the relevant circumstances pertaining to the applicant’s request for consent.”
In general, the exercise of discretion and independent judgment by trustees prior to reaching a decision is important for them to be able to prove. It involves the comparison and the evaluation of all courses of conduct and consequences, showing that these have all been considered through discussion and investigation, and then coming to a decision based on the various possibilities that have been considered and discussed.
Information about the CSOS, the CSOS Legislation, the various practise directives pertinent to community scheme living issued by the CSOS Ombud, their address and contact details, and the role the CSOS plays in the management of community schemes and dispute resolution between parties through mediation and adjudication, can be found on the CSOS Website www.csos.org.za , or can be obtained from Whitfields by emailing info@whitfields.co.za or by contacting your scheme’s customer service consultant.