Cannabis in Sectional Title schemes

First introduced in 2020, the new legislation establishes a legal framework for the use, possession, and cultivation of cannabis in SA, and makes it legal for adults to use cannabis (also known as marijuana or dagga) in the privacy of their own homes – but the distinction between private and public spaces is more difficult to define in Sectional Title schemes, notes Andrew Schaefer, MD of leading property management company Trafalgar.

“It’s fairly obvious that Sectional Title residents cannot smoke or grow cannabis in any common property areas like passages, courtyards, garages and parking bays, playgrounds, gardens, clubhouses, shared braai areas or swimming pool surrounds. “In addition, no plants or dried cannabis can be bought or sold anywhere within a Sectional Title scheme. But what about residents smoking it on their own apartment balcony, for example, or growing it in their own townhouse garden?”

Generally, he notes, balconies and gardens that are registered as exclusive use areas are considered in Sectional Title schemes to be private spaces, while those that are not registered are considered public spaces, meaning that residents would have to refrain from using cannabis in those areas – even if no-one else in the complex could reach them. “But that’s not the end of things. Just like cigarette or vape smoke, cannabis smoke drifts, and could cause neighbours to object even if a resident was smoking on their own, exclusive use balcony or patio, or in their exclusive use garden, or in their private residence. Similarly, they might have concerns if there were cannabis plants growing in an exclusive use garden space that could easily be accessed by others, especially children.”

At that stage, says Schaefer, the trustees might decide to invoke Section 13 of the Sectional Title Schemes Management Act (STSMA), which states 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.

In accordance with this, Prescribed Management Rule 30 of the Act provides for trustees to take all reasonable steps to ensure that:

“And this might result in them requesting residents – both owners and tenants – to refrain from smoking or growing cannabis anywhere in the complex except inside their own sections. Alternatively, they could try to introduce a new Conduct Rule outlining the precise conditions for cannabis use in their scheme – but it is important to note that the CPPA is national legislation, so any new rule would not be allowed to prohibit the smoking or growing of cannabis altogether.”

In addition, he says, a new Conduct Rule could be regarded by some residents as ineffective in regulating the use of cannabis in their complex, and by others as too strict and an infringement of the rights granted by the CPPA, “in which case the parties would need to consider lodging a dispute with the Community Schemes Ombud Service (CSOS) so that the issue could be resolved by mediation or arbitration”.

Meanwhile, owners who are renting their Sectional Title units must now make sure that their lease agreements stipulate whether the property is a smoking or non-smoking unit, especially if they don’t want their tenants smoking cannabis – or anything else – because there is a risk of them contravening the scheme’s Conduct Rules.

“In some schemes, landlords can be fined when tenants break these rules,” says Schaefer, in which case they need to make sure that the lease also provides for them to cancel the agreement after three written warnings if the tenants are observed or found smoking.