Some kids of our scheme approached me to find out if the owner of the unit adjacent to a piece of common property lawn may forbid them to play on this lawn.
I answered with Section 44(1)(d)&(e) of the Sectional Titles Act (Act no 95 of 1986) in mind (emphasis added): An owner shall:
· use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment thereof by other owners or other persons lawfully on the premises;
· not use his section or exclusive use area, or permit it to be used, in such a manner or for such purpose as shall cause a nuisance to any occupier of a section;
The children are lawfully on the premises, either as children or grand children of owners or tenants and may therefore play on the common property lawn.
Children playing make noise, it is in their nature. Does the owner of the unit have a right to peace and quiet? The key to this issue is the meaning of what unreasonable interference entail. Children have a right to be children and that includes playing. It is my position that the owner may not forbid the children to play in front of her unit on the common property grass, but may negotiate reasonable times with the parents of the children—that is an element of the democracy of sectional title ownership. The parents in turn have the responsibility to honour the agreement and make sure their children adhere to the times.
To add insult to injury, the owner of the unit in question has a little dog that barks when the kids play on the lawn. It is my position that the right to play of the kids should enjoy preference over the doggie. The owner must move the dog to a room where the dog would not have reason to bark at the kids when they play during their agreed time.
The children had been playing on a bigger piece of lawn, which took a bit of a hammering. The trustees wish to restore the lawn and made a request to the kids not to play on it while restoration is in progress. That is why the kids reverted to the lawn in question (smaller).
Balancing the interests and needs of all involved in a sectional scheme is never easy.
Revised 17 May 2010
