Nuisance in Community Schemes
Is your neighbour a nuisance?
Just like family, you cannot choose your neighbours, and this can result in anything from close friendships to conflict over alleged nuisance behaviour. This is a sensitive subject when living in Sectional Title and Homeowner developments because you live within close proximity to one another.One of the advantages of living in an estate or complex is the fact that you and your family benefit from shared facilities on common property, such as clubhouses, swimming pools or play areas. While these can be a huge bonus – especially with kids at home during the school holidays – they do come with some inherent risks that should be borne in mind by parents and explained to children.
The most common complaints about neighbours tend to be around noise – power tools, dogs barking, or loud music. However, you might be interested to know that in South African law, there is no specific definition of ‘nuisance’. Rather, the law provides a series of tests that the courts can apply to determine if someone is causing a nuisance.
The ultimate test is reasonableness – if what your neighbour is doing can be considered ‘reasonable’, then it is not a nuisance. To determine this, two principles are applied – and you will notice that they balance each other.
All property owners or tenants have a duty to not unnecessarily injure others (by injure, the law means upset, inconvenience or distress);
But at the same time, there must be ‘give and take’ between neighbours – live and let live, in other words.
In community schemes, where people have shared walls and share communal areas, the degree of give and take may need to be higher.
So what counts as a nuisance?
Essentially, any unreasonable behaviour can be classed as a nuisance. This definition is broad enough to include actions by your neighbour that negatively affect the value of their property (or of yours), or which impact your security, and even the way they communicate with you.
It is generally understood that all neighbours have rights, and that these extend up to the limits of everyone else’s rights. This means that you will always be expected to put up with a certain amount of disturbance.
When deciding what counts as reasonable behaviour, a court or adjudicator will always consider the circumstances (what is acceptable in one scheme may not be acceptable in another). Any alleged nuisance will always be assessed in terms of its impact on an average person – not, for example, on someone who is an unusually light sleeper.
While nuisance behaviour tends to be activities outside the normal range of activities, the intent behind the behaviour can make it a nuisance if it is deliberately aimed at annoying others.
Factors that determine a nuisance
To determine whether or not a neighbour’s behaviour has crossed the line into becoming a nuisance, a number of factors have to be considered:
The time of day is important – mowing a lawn at 2pm might be considered reasonable; at 2am, it would almost certainly count as a nuisance.
The frequency is also an important consideration – the occasional braai or party will have to be tolerated, whereas loud music night after night would be unreasonable.
The location and of course the type of activity are vital factors – certain activities may also be prohibited under the community scheme rules, such as running a business that involved continuous use of power tools.
Before deciding that something counts as a nuisance, it is important to look at why someone was doing something – emergency repairs in the case of a burst pipe might be reasonable, whereas activities that could be postponed until a more appropriate time might be considered a nuisance.
A major part of the reasonableness test is whether the activity could be expected to disturb or harm others – for example, this question would come into play if your neighbour had a major fireworks display, took up learning the drums, or placed so much birdfeed in their garden that your property was regularly defaced by pigeon droppings.
Linked to this is the question of personal or social usefulness – activities that cause a disturbance without this justification may well be classed as a nuisance. It is also important to look at whether the disturbance could be avoided – if your neighbour works certain shifts, then it is unavoidable that they will need to start their car at an early hour and drive out.
Perhaps the biggest source of contention is how much of a nuisance something is. What you think is an unbearable racket might not seem all that loud to the person causing it.
Solving unreasonable behaviour
There is a saying that ‘good fences make good neighbours’ – one interpretation of this would be that with common sense and tolerance, everyone can be a good neighbour. If, however, you feel that your neighbour is acting unreasonably, the best approach is always to try and talk to them in a neighbourly fashion. Failing which, this can be escalated to the Community Scheme Ombud Service (CSOS). Under Section 39(2)(a) of the Community Schemes Ombud Service Act of 2011, an adjudicator can order a person to act, or refrain from acting, in a specified way.
In the event of unreasonable behaviour which "injures" / disturbs multiple owners (more than 2 separate owners lodging formal complaints) then its advisable to notify your Property Manager and they can try and assist.
We hope that this article has given you a better understanding of Nuisance in Community Schemes.
For expert advice on all aspects of Complex living (Sectional Title and Homeowners Associations), contact Solver Property Services.
Disclaimer: Kindly note that the above article is merely for information and is not intended to be comprehensive nor to provide legal advice. Solver Property Services, its employees and agents can in no way be held liable for the accuracy or otherwise of the contents of this article, or for the consequences of any action taken or not taken by any person or organisation based on the contents herein.
For more information, contact 010 822 2882. Solver Property Services has a team of experienced Property Managers / Managing Agents that can assist you. We have close to 200 complexes that we manage across South Africa. Solver Property Services are considered Gauteng’s preferred managing agents.