Smoke, noise, vibrations, dust, odours, light, blockage, animals, children, noxious fumes ... whatever the nuisance, what may you do; or expect the trustees of a sectional scheme to do regarding unreasonable interference?
The Sectional Titles Act (STA), No 95 of 1986, §44(1)(d+e), as well as the Sectional Titles Schemes Management Act, No 8 of 2011—that would repeal sections 37 to 48 of the STA—§13(1)(d+e) reads "an owner must":
- (d) use and enjoy the common property in such a manner as not to interfere unreasonably with the use and enjoyment thereof by other owners or other persons lawfully on the premises;
- (e) not use his or her section or exclusive use area, or permit it to be used, in a manner or for a purpose which may cause a nuisance to any occupier of a section;
There is both a duty not to cause a nuisance and a right not to be unnecessary disturbed.
But what consitutes unreasonable interferance? There are no definitions, the common law applies, namely material interference an ordinary person would have reason to object about. It does not make provision for unusual aversion or a medical condition of intollerance. Professor Graham Paddock elaborates on this matter as it pertains to smoke nuisance and the Tabacco Product Control Act in a video on smoking in sectional title schemes. Download Paddock_Smoking
The trustees of a sectional title scheme can only be expected to intervene if a rule exists that they are obliged to enforce. If a rule does not apply to a particular situation considered a nuisance, an owner or occupier has to tke the matter up with the source of the perceived nuisance. The complainant may pursue prescribed managment rule 71 if the other party is not willing to accommodate.
However, in high density residential schemes occupants ought to have robustness and be prepared to tolerate. Quite interesting, the word robust originates from the Latin robustus, meaning "strong and hardy," originally "oaken," from robur, robus "hard timber, strength," also "a special kind of oak," named for its reddish heartwood.