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Smoke and smells are responsible for many heated conflicts in sectional title complexes, but a new provision in the “Sectional Titles Schemes Management Rules” may help to resolve these, says specialist sectional title attorney and BBM Law director Marina Constas.

She cites recent cases involving irate cigarette smokers and aspiring braai masters. “In one case, we had tenants who congregated on a small balcony, chain-smoking for hours while the resident above was smoked out while trying to read on his balcony. In another, there were young newly-weds who often invited guests to smoky braais on their balcony, oblivious of the smoke that was wafting upwards and disturbing the upstairs neighbour who was trying to enjoy fresh air and a view.”

Constas says that when approached about each offensive situation, both the puffing tenants and the newly-weds became defensive; indignant about being hauled over the coals by the upstairs owners. “It was incomprehensible to them that they could not enjoy a smoke or a braai on their balcony, which, they pointed out, is in an open area. In defence of the smoking tenants, they are not smoking in an outdoor public space as defined by ‘The Tobacco Products Control Act 83 of 1993’. This Act prohibits smoking in any public place. A balcony attached to a privately-owned section is not a public place. So, do the upstairs owners have any recourse at all?”

The answer, she states, may lie in the latest legislation’s new Rule 30(e) under the heading dealing with the use of sections and common property. It states that owners or occupiers of sections or exclusive use areas must not do anything within these areas that will have a "material negative effect" on the value or utility of any other section or exclusive use area.

“In any hearing on these complaints, several factors would be considered. These include the frequency of smoking, the number of smokers and any pre-conditions of the upstairs occupant, such as asthma. Everything will boil down to ‘reasonableness’ and to the ability of the complainants to persuade the Ombud or arbitrator that no reasonable man under the circumstances should have to tolerate smoke for protracted periods of time,” Constas explains. 

Marina Constas

She says that another recent conflict involved a fully-fledged food business that was being run in the unit diagonally opposite a client's flat. “The problem was not smoke this time, but rather the fish and curry smells that were wafting through the corridors. To their considerable credit, the owners of the food business would provide free dinners to everyone on the same floor, partly due to their generous nature, probably also to avoid brewing objections. My client would have none of it, however. In preparing a compelling argument in favour of prohibiting the food business from continuing, two aspects were investigated. Firstly, the negative material effect on the use of my client's unit was considered. While it may be pleasant to occasionally smell the delicious aromas of food bubbling on your neighbours' stoves, it is quite another thing to be forced to accept this onslaught of strong smells every day, throughout the day. Secondly, the building in the zoning certificate is specifically recorded as residential, and as such, a business cannot be run from the unit without the written consent of all owners.”

If owners do not consent, the owner wanting to change the use of his unit may apply directly to the Ombud for permission, she notes. “This is an innovation in the legislation which became effective on 7 October 2016. Again, in making any determination on this dispute, any presiding officer would take cognisance of the fact that the interest of each party must be weighed up, together with the best interests of the Body Corporate. Is the running of a business prejudicing the interests of owners? Is security being compromised? Are there food delivery trucks making increased use of the gates? Other laws must also be looked at which govern the hygienic aspect of running a food business, for example, as well as applicable by-laws.

“The bottom line is that any decision you take in how you live your life within a sectional title scheme must be measured and well considered. I would advise residents to be slower to make decisions which will affect those around them. The creation of the Ombud's office is a valuable addition to the dispute resolution process. The holding of mediations will get the parties to face each other, and to acknowledge the other person's position. The Ombud will want to see, though, that any applicant has exhausted all attempts at dispute resolution internally first. Trustees should consider amending their rules to include an internal mechanism which provides a mediation platform. This may save the time which is necessary to attend hearings at the Ombud's service, and could go a long way to forging better relationships, and creating more peaceful sectional title environments.”

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