My absolute favourite time of year is Christmas. In South Africa, the Christmas season brings with it fun, food, family, friends, and festivities. However, in sectional title schemes this could mean more braais, higher volumes of visitors, increased traffic, parking problems, and noise nuisance.
The first question that arises in this regard is: what would be reasonable for owners and occupiers to tolerate in these circumstances?
The Sectional Titles Act 95 of 1986 (“the Act”), Prescribed Management Rules (“the PMRs”) and Prescribed Conduct Rules (“PCRs”) make provision for how owners must behave.
Section 44(1)(d) of the Act states that an owner must “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.”
Furthermore, section 44(1)(e) states that an owner must “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 terms of PMR 68(1)(i) an owner must “not use his section, exclusive use area or any part of the common property, or permit it to be used, in such a manner or for such purpose as shall be injurious to the reputation of the building.”
Sectional title schemes create an intensified community. It seems reasonable that neighbours should tolerate some of the consequences that arise due to the holiday season. However, it could be that one of the owners works in an industry that is busy over the festive season for example retail, or that he or she does not celebrate Christmas. It is for this reason that there needs to be a balancing of interests.
The second question revolves around whether the owner or occupier is entitled to erect Christmas lights on the exterior of their section or place an advent wreath on the outside of their door.
In terms of PMR 68(1)(iv) an owner shall “not do anything to his section or exclusive use area which is likely to prejudice the harmonious appearance of the building.”
PCR 5 also states that “the owner or occupier of a section used for residential purposes shall not place or do anything on any part of the common property, including balconies, patios, stoeps, and gardens which, in the discretion of the trustees, is aesthetically displeasing or undesirable when viewed from the outside of the section.”
Chapter 2 of the Constitution of the Republic of South Africa, 1996 contain the Bill of Rights. Section 15 everyone has the right to freedom of conscience, religion, thought, belief and opinion. Furthermore, section 16 gives everyone the right to freedom of expression. Finally, section 31 states that “Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community to enjoy their culture, practise their religion and use their language.”
The owners or occupiers of sections are entitled to express their religious beliefs over the festive season, but this would require that it not prejudice the harmonious appearance of the building and should not be aesthetically displeasing.
In my view it would be best for the scheme to adopt a conduct rule that regulates placing Christmas decorations outside the section or that can be seen from the outside of the scheme. In this way the owners have agreed to what they view to be acceptable and there will be no confusion as to what is allowed and what is not.
Article reference: Paddocks Press: Volume 09, Issue 12, Page 5.
Image reference: http://favim.com/image/248466/
Carryn Melissa Durham is a Specialist Sectional Title Lawyer (B.A LL.B, an LL.M), currently completing her Doctorate in sectional titles. Carryn heads up the Paddocks Private Consulting Division. For more information please contact Nicole on 021 686 3950 or firstname.lastname@example.org.
This article is published under the Creative Commons Attribution license.