The law of nuisance plays a critical role in balancing the rights of individuals to enjoy their property against the obligation not to unreasonably interfere with the rights of others. This principle is especially pertinent within community living arrangements such as sectional title schemes, where residents live in close proximity and are subject to shared rules and spaces.
In recent years, the rise of short-term rentals has brought both benefits and challenges to property owners in residential buildings. One particular concern is the frequent smoking of cannabis by short-term tenants, which has led to increasing complaints from long-term residents.
Nuisance in Law: An Overview
A nuisance may be broadly defined as any interference with, or encroachment upon, an individual’s right to the use and enjoyment of their property, particularly immovable property. However, South African courts have qualified this definition by requiring that the alleged nuisance be both unreasonable and that the resulting inconvenience be material.
As a starting point, the legal framework primarily assesses whether the encroachment in question is reasonable, as there is generally no rigid or absolute standard. The principle of reasonableness entails a balancing of interests: namely, the affected party’s right to the use and enjoyment of their property must be weighed against the rights and conduct of the other party. In determining what is reasonable, courts will take into account various relevant factors, including the nature, extent, and duration of the interference.
An increasingly common example that highlights the application of nuisance law is the smoking of cannabis in residential schemes.
Legal Remedies for Affected Residents and Owners
- Internal Scheme Procedures: Most schemes provide mechanisms for lodging complaints with the body corporate or trustees. Conduct rules may empower trustees to impose fines or regulate short-term letting. The body corporate may consider implementing a general no-smoking policy in general-use areas or designating a certain section of the property for smoking to limit the effects in shared spaces or other units.
- Filing a Complaint with the Body Corporate: Many Conduct Rules allow residents to report nuisances to the chairman of the Body Corporate. If internal measures fail, owners may escalate the issue to the Community Schemes Ombud Service (CSOS).
- Seeking an Adjudication through CSOS: If smoking, or a similar nuisance, continues to cause significant inconvenience, owners can file a complaint with CSOS, which will consider factors such as frequency, severity, and impact on residents. A successful adjudication could result in a binding order prohibiting further smoking or imposing stricter Body corporate rules.
Case Precedents and Challenges
Previous CSOS cases provide insight into the potential difficulties in successfully proving a nuisance claim:
- WG v EP: The applicant sought an order to prevent the respondent from causing an unpleasant cannabis smell. Despite the applicant’s claims, the adjudicator found no corroborative evidence from other residents or body corporate members to substantiate the complaint. The ruling emphasised that a nuisance must materially affect ordinary comfort rather than just subjective sensitivities. This case highlights the necessity of gathering multiple complaints and independent evidence to prove the extent of the nuisance.
- LM v WE: The applicant claimed that the respondent’s cannabis smoking constituted a nuisance. However, the adjudicator referred to the Constitutional Court ruling in Minister of Justice v Prince, which confirmed that adults may use, possess, and cultivate cannabis in private for personal use. Since no laws or body corporate rules were violated, the adjudicator ruled in favour of the respondent. This case underscores the difficulty of restricting cannabis use when it occurs within private spaces and does not demonstrably impact other residents.
- BGE v LP & Others: The applicant argued that her neighbours’ vaping caused second-hand smoke to infiltrate her living space, leading to respiratory issues and significant discomfort. The adjudicator found that a nuisance must be objectively unreasonable and that substantial health impacts could justify intervention. However, the application was dismissed because the body corporate was not joined as a party to the proceedings. This case illustrates the importance of ensuring that all relevant parties are included in nuisance claims to avoid procedural dismissals.
It is accordingly important to ensure that a nuisance case is structured well, that all relevant parties are joined to the proceedings and that the CSOS is approached with caution. Claims should be supported by proper evidence and reflect a well-established legal basis.
Conclusion
While the legalisation of cannabis complicates nuisance claims, property owners still have legal avenues to protect their rights. If internal resolutions fail, CSOS provides a formal process for seeking relief. A well-documented case demonstrating significant interference with daily life and health impacts stands the best chance of success.
Should you be facing a nuisance challenge, please do not hesitate to contact us, and we shall gladly assist.
For further assistance, you may contact me at michaela@caf.co.za.
Written by Michaela Bezer
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).