What can a tenant do in a complex when barking dogs are a problem?

What can a tenant do in a complex – when barking dogs are a problem?

A P24 reader asks:

A Property24 reader says two Jack Russells opposite their unit are driving her insane and the body corporate won’t do anything about it.
I’ve been living in a complex for 4 years and there are two dogs right opposite us, which are driving me insane! The last three months have been a complete nightmare as the body corporate and the trustees won’t do a thing, as according to them I'm a tenant and not an owner like the lady with the dogs. 

Her gate is across from our unit, so every time we even move around the house, her dogs bark at us. I've made numerous complaints, and no one seems to be doing a thing about it. I refer to the rules in our complex as well, which clearly stipulate that no unit may have more than one small dog, one cat and two parrots. She has two Jack Russells and a cat. 

I’ve also been told that the dogs aren’t a problem and I’m making a fuss over nothing.

Aren’t all the people living in the complex to be taken into consideration? What can I do? 

Carryn Durham, specialist sectional titles lawyer at Paddocks, advises: 

There is a misconception that there is no legal relationship between the body corporate and tenants in sectional title schemes. Although the legislation focuses on the direct relationship between bodies corporate and owners in sectional title schemes, section 35(4) of the Sectional Titles Act 95 of 1986 (“the Act”) provides that a scheme’s rules shall bind the body corporate, owners of sections and any person occupying a section. Prescribed management rule 69 goes further by placing a positive obligation on an owner to ensure compliance with the rules by his lessee or occupant, including employees, guests and any member of his family, his lessee or his occupant. Prescribed conduct rule 10 also states that all tenants of units and other persons granted rights of occupancy by any owner of the relevant unit are obliged to comply with the conduct rules, notwithstanding any provision to the contrary contained in any lease or any grant of rights of occupancy. 

A tenant is not a member of the body corporate, but is a member of the community. The lease agreement establishes a contractual relationship between the tenant and owner, as landlord. Ultimately the owner is responsible for the actions of his tenant, and the tenant must go through the owner to deal with any issues that the body corporate or trustees are responsible for. The owner gives the tenant rights to use and enjoy the common property in exchange for payment of rental, and the tenant is entitled to use the common property in the same way as an owner is. Tenants have the responsibility to adhere to the same rules that deal with occupation issues, for example the rules relating to the keeping of pets and noise and nuisance provisions. Tenants should, in my view, also have the corresponding right that other occupants (including owners) should also adhere to these rules. 

The trustees must do all things reasonably necessary for the enforcement of the scheme rules in terms of section 38(j) of the Act and prescribed management rule 28(3). Sectional title schemes are subject to the local authority's by-laws. Furthermore, owners are prohibited from contravening any law, by-laws, ordinance, proclamation or statutory regulation in terms of prescribed management rule 68(1)(ii). If the trustees will not enforce the scheme's rules and/or uphold the municipal by-laws, then I would suggest that you check the municipal animal by-laws in the area in which you reside, and call the local authority to enforce the by-law. 

The City of Cape Town’s animal by-law, that came into effect on 1 March 2012, deals specifically with barking dogs. By-law 6(e) states that a person shall not keep any dog which barks for more than six minutes in any hour or three minutes in any half hour. This provides the law enforcement official with an unambiguous and objective criterion against which to measure excessive barking. 

The Western Cape Noise Control Regulations, published in the Provincial Gazette on 20 June 2013, contained in the Environment Conservation Act 73 of 1989 also deals with noise by animals. Regulation 3(c) states that, in so far as it causes or is likely to cause a noise nuisance, a person may not allow an animal to make noise. It gives an interesting perspective on the response to noise in that the resolution of such problems is primarily through negotiation and only if all else fails, should the matter go the legal route. 

A noise may be defined as a loud or unpleasant sound, particularly one that causes disturbance. In general terms nuisance is considered to be an ongoing disturbance. There are noises which are acceptable and others that are unacceptable. Higher levels of noise will generally be considered to be a nuisance. In the context of high density housing, people are not entitled to expect absolute silence. However, if noise is sufficiently audible, of an annoying nature and persists for such a length of time that it constitutes an unreasonable interference with a person’s' peaceful use and enjoyment of their property, this will be considered to be a nuisance. It is also important to note that people have different tolerance levels to noise. The standard applied is that of a reasonable person, and not an over sensitive person. One cannot complain about the noise because one has a particular medical condition or other sensitivity to what is in fact ordinary noise.

Source: P24/ Carryn Durham