Introduction
The summer season in South Africa brings increased festivities and celebrations. Holidays such as Halloween, Guy Fawkes, Christmas and New Years Eve mean increased socialisation. It is meant to be a time we rest, relax, recalibrate and reconnect with friends and family. Unfortunately, this period can create excessive noise nuisance in schemes. This article will set out how to manage noise nuisance in sectional title schemes in a reasonable manner.
What does the sectional title legislation say about noise nuisance?
The Sectional Titles Schemes Management Act 8 of 2001 (the “STSM Act”) does not contain specific provisions that deal with noise nuisance in sectional title schemes. The avoidance of nuisance is framed in more general terms. Section 13(d) of the STSM Act provides that:
“an owner must “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”.
Section 13(e) of the STSM Act furthermore provides that:
“an owner must “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”.
What do the Management Rules say about noise?
Prescribed management rule (“PMR”) 30(e) provides that:
“the body corporate must take all reasonable steps to ensure that a member or any other occupier of a section or exclusive use area does not do anything to a section or exclusive use area that has a material negative effect on the value or utility of any other section or exclusive use area.”
ALSO READ: Dealing with Sections, Common Property and Exclusive Use Areas – Stratafin
What do the Conduct Rules say about noise?
Prescribed conduct rule (“PCR”) 7(3) provides that:
“the owner or occupier of a section must take reasonable steps to ensure that the owner or occupier’s visitors do not behave in a way likely to interfere with the peaceful enjoyment of another section or another person’s peaceful enjoyment of the common property.”
Noise causing a nuisance
Noise may cause a nuisance to others in the scheme or may also cause a material negative effect to other residents in the scheme. The body corporate can restrict noise to the extent where it causes a nuisance or materially and negatively impact the other residents in the scheme.
A “nuisance” can be defined as a civil wrong which is the unwarranted, unlawful, or unreasonable use of one’s property in a manner that substantially interferes with the enjoyment or use of another individual’s property, without actual trespass or physical invasion of the land. The dictum of Buchanan J in Holland v Scott (1882) 307 (EDC) at 332 states the following for a nuisance to be considered actionable:
“. . . the plaintiff must show that the inconvenience complained of is in fact more than fanciful, more than one of mere delicacy or fastidiousness; that it was inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions.”
Noise nuisance dispute resolution
In order to regulate what is appropriate and allowed within your scheme we recommend that sectional title schemes adopt specific rules that relate to what is considered acceptable noise and periods of silence that must be maintained. It may be prudent to incorporate a penalty rule that allows for fines to be enforced for noise rule infringements. It is important that all evidence of the noise nuisance is collected such that the allegations in the warning and final notice as well as the hearing are justified. Photos, videos, logs of times that noise nuisance was occurring and sworn affidavits by witnesses should suffice as evidence.
Where disputes arise that are not capable of being resolved amicably within the scheme, the owners or body corporate can declare a dispute at the Community Schemes Ombud Service. The CSOS will attempt to resolve the dispute through conciliation. Where that fails the CSOS is capable of resolving the dispute by granting an adjudication order that is as enforceable as an order of the High Court. The appropriate prayer for relief is section 39(2)(a) of the Community Schemes Ombud Service Act 9 of 2011 that states that:
“An application made in terms of section 38 must include one or more of the following orders: In respect of behavioural issues – an order that particular behaviour or default constitutes a nuisance and requiring the relevant person to act, or refrain from acting, in a specified way.”
Conclusion
Every member of the body corporate needs to consider their fellow residents and act in a manner that takes others comfort into consideration. That being said the way in which the body corporate handle the noise nuisance complaint should be reasonable. A certain level of reasonable increased noise over festive periods should be tolerated.
WRITTEN BY DR CARRYN MELISSA DURHAM
