Quick Guide: Nuisance in community schemes
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.
What is a nuisance?
The principles of the South African law of nuisance are:
- an owner using their property must not unnecessarily injure others, and
- there must be “give and take” between neighbours.
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.
When is conduct reasonable? How to evaluate possible nuisances.
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:
- when, where and how often it occurred,
- whether it could have been expected to disturb or harm others,
- the apparent reason,
- whether it has any personal or social usefulness,
- whether it could have been avoided, and
- the extent of the negative effect.
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:
- Behaviour that would be reasonable in one type of area or in a particular scheme might not be acceptable in a different kind of area or scheme.
- Only behaviour that would substantially negatively affect an average person can be a nuisance. An unusually sensitive person cannot object to normal noise or odour levels, even if they suffer discomfort.
- Normal activity can be a nuisance if the person undertakes it intending to harm or annoy another.
Thinking Inside the Box 
Your article describe Nuisance well but not so with how to deal with it.
For example, we have children from 8 to 14 who run riot in the complex – one urinates close to a Trustee’s unit. They have been told many times not to play in an area, yet they continue to do this.
Trustees car get scratched for them trying to control them – their parents have no interest in their children.
How do we get to parents about their children – when they received a written complaint – they demand a video for proof.
It is very difficult to control low class people, and there are black, white and coloured that are involved here.
Butch