A NEIGHBOUR SMOKES CIGARETTES CONTINUALLY ON HIS PATIO AND THE SMOKE DRIFTS INTO MY UNIT, CAUSING ME DISTRESS. CAN THE ESTATE MANAGER ASSIST ME?
- The estate manager who acts for and on behalf of the body corporate is unable to assist. It is advisable for the complainant to speak with the person in question directly as the matter is not a body corporate issue.
- The Tobacco Products Control Act doesn’t apply to Sectional Title schemes or to private property.
- According to the Sectional Titles Act Section 44 (1)(d)(e) residents have rights and duties within a scheme but residents are also expected to have a reasonable ability to withstand adverse conditions.
- If a resident can prove that the ‘nuisance’ significantly affects them (note that allergies to smoke can’t be used as an argument), even though they have a reasonable ability to withstand adverse conditions, they can pursue this actionable nuisance via arbitration as per Prescribed Management Rule (PMR) 72.
- There is no statutory definition of nuisance or unreasonable interference as it is so broad and therefore Common Law applies.
- Smoking in Sectional Title Schemes only becomes a body corporate issue / duty if it relates to the scheme’s conduct rules and its management of common property. As far as the Sectional Title experts are concerned this will always be an issue between owners / residents because a scheme would not insert an anti-smoking or smoking-nuisance clause in its rules as it infringes on the rights of residents as per Section 44 of the Act, and the smoking of cigarettes in South Africa is a permitted activity.