Smoking within a sectional title scheme, or rather complaints of smoking within a sectional title scheme is nothing new.
Trustees are often confronted with complaints by owners / residents that smoke would enter their Units, either as a result of people smoking in the passage ways (common property) or within their Units.
Smoking of all tobacco products which means a product containing tobacco that is intended for human consumption and includes, but is not limited to, any device, pipe, water pipe, papers, tubes, filters, portion pouches or similar objects manufactured for use in the consumption of tobacco is legal in South Africa and is regulated by the Tobacco Products Control Act, Act 83 of 1993. The Act was designed to:
- regulate smoking in public places;
- to regulate the sale and advertising of tobacco products in certain respects and to prescribe what is to be reflected on packages;
- and to provide for matters connected therewith.
The aforesaid Act defines a ‘public place’ to mean “any indoor, enclosed or partially enclosed area which is open to the public, and includes a workplace and a public conveyance”.
The Act also defines a ‘private dwelling’ to mean any part of-
“(a) any room or apartment of a building or structure which is occupied as a residence; or
(b) any building or structure or outdoor living area which is accessory to, and used wholly or principally for, residential purposes.”
Since the aforesaid Act was designed to regulate smoking in public places it will not find application to a Sectional Title development.
As a matter of interest, no person may smoke any tobacco product in any motor vehicle when a child under the age of 12 years is present in that vehicle or in a private dwelling if that private dwelling is used for any commercial childcare activity, or for schooling or tutoring.
A sectional owner’s conduct with regard to his section and the use of common property is regulated by the Conduct Rules. Consequently the manner, in which complaints of this nature must be addressed, is for members to adopt a Conduct Rule that prohibits or restricts smoking by owners / residents on certain parts of the common property. A rule that prohibits or restricts smoking within a Unit would be unenforceable.
The following draft rule can be considered:
Smoking habits:
(1) Smoking is strictly prohibited in all common areas and on common property.
(2) Residents shall ensure that a nuisance is not caused to any other residents and all smokers are called upon to ensure that their Unit’s doors and windows are closed when smoking.
(3) The patio is recommended for use by smokers provided smoke does not enter upper lying units.
(4) Residents shall furthermore be subject to the limitations imposed by smoke legislation were applicable and as amended from time to time.
(5) Smoking habits may not cause a nuisance to other owners and/or residents.
It is suggested that in the absence of any Conduct Rule that prohibits or restricts smoking on common property, that one can rely on the provisions of Section 44(1)(d) & (e) of the Sectional Titles Act, Act 95 of 1986 (as amended) in the event of a complaint concerning a nuisance caused by smoke.
Section 44(1)(d) & (e) reads as follows:
“An owner shall-
(d) 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;
(e) 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.”
In a high density development scheme such as a Sectional Title Scheme, people are expected to have a reasonable ability to tolerate adverse conditions and limitation of rights.
There is no statuary definition of nuisance and therefore the common law applies. The maxim sic utere tuo ut alienum non laedas is translated to read use [what is] yours so as not to harm [what is] of others or use your property in such a way that you do not damage others.
In order to rely on the aforesaid common law principle, supported with the provisions of Section 44(1)(d)&(e) of the Sectional Titles Act, the nuisance being caused as a result of the smoke (smoking), must result in a substantial degree of interference with the complainant’s rights to the use and enjoyment of his property, measured against that of the reasonable man.
Article by Izak du Pisanie
www.eyslaw.co.za
