Smoking in sectional title schemes

Smoke is always a controversial issue in sectional title schemes due to the proximity in which people live.

In South Africa, smoking tobacco products is governed and regulated by the Tobacco Products Control Act (TBCA), which regulates smoking in public places, among other functions, and is defined as “any indoor, enclosed or partially enclosed area which is open to the public”.

While it may not be enforceable to prohibit occupants from smoking within their unit, it is necessary to understand that smoke (whether it be from tobacco, cannabis, vaping, or braaiing) does not stay in one place and could affect the common property or other sections within that scheme.

We refer to the Sectional Title Schemes Management Act (STSMA), Sections 13(1)(d) which states “use and enjoy the common property in such a manner as not to interfere unreasonably with the use and enjoyment thereof by other owners” and Section 13(1) estates “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 or a section”.   

When an occupier is bothered by second-hand smoke, you should check the scheme’s rules to see if they deal with smoking. When second-hand smoke occurs regularly and causes serious interference, it becomes a nuisance.  Having a rule in place can regulate smoking to prevent it from becoming a nuisance.  If a rule is not in place, an owner can ask the scheme to regulate smoking in a reasonable way that would prevent an existing problem.

In sectional title schemes, an owner or occupant of a section has certain rights and obligations in respect of their section, any exclusive use areas, and the common property. These rules aim to ensure that one person’s use and enjoyment of the property does not impede on another’s.

A body corporate has an obligation under prescribed management rule 30, which states “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:

• Use the common property to unreasonably interfere with other persons lawfully on the premises in breach of section 13(1)(d) of the Act;
• Use a section or exclusive use area to cause a nuisance in breach of section 13(1)(e) of the Act.

Further, rule 30(e) of the STSMA, which deals with terms and conditions of using sections and the common property, states that anything that would cause a “material negative effect” on the value or use of any other section or exclusive use area is prohibited.

An occupier can also approach CSOS for dispute resolution by conciliation or adjudication. Section 39(2)(a) of the Community Schemes Ombud Service Act (CSOSA) allows a person to apply for an adjudicator’s order about that behaviour that is causing a nuisance. However, the Ombud may reject the application if no attempt has been made to resolve the issue with the smoker.