A Paddocks Sectional Title Lifestyle Blog
An increasing number of South Africans live in close contact with their neighbours. Section 39(2)(a) of the Community Schemes Ombud Service Act of 2011 allows an adjudicator to control nuisance behaviour by ordering a person to act, or refrain from acting, in a specified way. People need to understand what behaviour will be considered a nuisance in community schemes.
The principles of the South African law of nuisance are:
Nuisance includes any abnormal behaviour that causes harm or damage to a neighbour. It is an abuse of ownership rights and conduct that would materially inconvenience or harm an average neighbour. Residents living close to others must expect to be aware of them and to be somewhat disturbed by their activities. An increased amount of “give and take” is required, especially on shared property. Nuisances can also arise in the communications between residents, with scheme executives and managing agents. The law cannot list all potential nuisances—it establishes principles and allows judges and adjudicators to decide whether particular behaviour can be considered reasonable.
Actions that unnecessarily prejudice other residents’ security, interfere with their ability to use their property or negatively affect its value may well be nuisances, as well as the abuse of technology in writing, email, voicemail, videoconferencing and other online communications.
Scheme residents are entitled to protection from others’ unreasonable behaviour. However, they must tolerate reasonable levels of disturbance arising from others’ routine use of the shared property. The test for nuisance is whether the conduct in question is appropriate and therefore lawful, given the competing rights of others.
In evaluating the reasonableness of behaviour that might be a nuisance, one must consider the surrounding physical and social environment. Look not only at what happened, but also:
Taking all the relevant factors into account and looking at all parties’ rights, the question—to be answered on a balance of probabilities—is, “Was the conduct reasonable?”
Additional factors judges and adjudicators may consider are: