Cannabis in Sectional Titles: A Complex Issue

The Solver Property Services team thought that we would touch on a much-debated topic in our Community Schemes: “Cannabis in Sectional Title Developments”

At the end of September 2018, the Constitutional Court passed legislation decriminalising the use of marijuana in a personal capacity. Essentially, this means that you can smoke cannabis in the comfort and privacy of your home without the fear of being arrested. Before you light up, if you live in one of the country’s many Community Scheme developments, you should read this.

The Key Elements of the Ruling

First, you need to fully understand the law and these points in particular:

It is legal to possess, use and cultivate cannabis in private and for your private use

According to the ruling, certain sections of the Drugs and Drug Trafficking Act 140 of 1992 (Drugs Acts) Medicines and Related Substances Control Act 101 of 1965 (Medicine Act) are inconsistent with the right to privacy that is entrenched in our Constitution.

What’s important to note here, is that these sections of the Drugs Act and Medicine cat are only unconstitutional is so far as they prohibit the possession, use and cultivation of cannabis by an adult in their own home and for their private use.

Public smoking of marijuana and commercial cultivation is prohibited

To further clarify what is and isn’t allowed, the ruling makes it clear that using marijuana in public, or growing it to sell, remains illegal. Officers will have to use their discretion, but should they suspect that a person is in possession of cannabis with intent to deal they can arrest them.

How Sectional Title Schemes are affected

While it’s clear that the new ruling has decriminalised the private use of cannabis, the issue in Sectional Titles or Community Schemes is defining private areas.

While you can safely assume that the inside of your dwelling is considered your private property, balconies, gardens and parking areas are more likely to be labelled as ‘exclusive use’ areas. Even if you are entitled to use an area exclusively, your activities may still affect your neighbours. For example, smoking a joint on your balcony could result in your neighbours asking you to abstain because of the smoke that drifts into their homes.

You may be able to use the Constitutional Court ruling in your defence but your neighbours could counter that with Sectional Title Schemes Management Act Rule 30(e) which deals with the use of sections and common property. It states that the body corporate is responsible for ensuring that owners or occupiers do not ‘use the common property/a section/an exclusive use area in a way that unreasonably interferes with the rights of others (who are lawfully exercising their rights).’

Growing marijuana for your personal use in your garden is also up for debate. In a Sectional Title, where other people may be able to access your garden (such as garden services), your exclusive use rights may not guarantee your right to cultivate cannabis on the property.

Body Corporates and Conduct Rules

Trustees may see fit to include certain restrictions around the use of cannabis within a Sectional Title Scheme. After all, the Sectional Title Schemes Management Act is full of laws and regulations designed to maintain law and order. Despite that, even with 75% of the complex voting for a special resolution, they would not be able to stop anyone from smoking marijuana.

Many have welcomed the new rulings on personal marijuana use, but for those living in Sectional Title Schemes, it has raised more questions. A little common sense and discretion will go a long way to ensuring that everyone gets to exercise their constitutional rights without making things unpleasant for others.

If you’re looking for a partner to assist you in navigating and managing the complexities of complex living, get in touch with us. Solver Property Services has years of experience managing Community Schemes and offers a uniquely customised service.

Disclaimer: Kindly note that the above article is merely an information guide, not intended to be comprehensive, to assist Community Schemes with the discharge of their fiduciary duties. Solver does not accept any responsibility for the contents. This is a highly debated topic and we by no means support or oppose the use of marijuana.