This article aims to provide information to owners and residents of community schemes who are bothered by ‘second-hand smoke’ that drifts from another dwelling or an open area into their private area and causes them distress. If this is an issue that concerns you, there are several things you should know and consider when dealing with this issue and when approaching the Community Scheme Ombud Service for an appropriate order.
Sections 13(1)(d) and (e) of the Sectional Titles Schemes Management Act apply. Residents must not use the common property, a section or exclusive use area in a way that causes a nuisance. They must not unreasonably interfere with others using the property. In a homeowners association, creating a nuisance is a common law breach.
While an occupier may contravene these laws by allowing second-hand cigarette smoke to drift into another private or public area, smoking remains a legal activity. However, when second-hand smoke occurs regularly and causes serious interference, it becomes a nuisance.
Start by trying to resolve the problem directly with the smoker. Explain the health impacts and propose an arrangement to limit smoking to specific places or times. Consider steps to reduce the impact of smoke, such as closing windows. But, sometimes, these approaches do not work.
A person bothered by second-hand smoke should look at the scheme’s rules to see if they deal with smoking. An adjudicator probably would not uphold a provision that completely prohibits smoking. However, rules can regulate smoking to prevent it from causing a nuisance. An owner can ask the scheme to regulate smoking in a reasonable way that would prevent an existing problem.
If none of your approaches solves the problem, you can apply to the 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 that particular behaviour is a nuisance and requires the person to stop it. However, the Ombud may reject your application if you cannot show that you have first made a reasonable attempt at self-resolution.
The adjudicator will judge the issues objectively, taking into account all the circumstances. The applicant needs to show that the smoke nuisance would be a problem for any reasonable person—it does not become a nuisance because the applicant has a particular challenge with breathing, e.g. they suffer from emphysema. On the other hand, an adjudicator can consider recent medical evidence about the harmful effects of second-hand smoke and changing community attitudes on the issue.
A body corporate has an obligation under prescribed management rule 30(b) to ensure that people do not use common property in a way that interferes with other legal use rights, and they don’t cause a nuisance. Most homeowners associations have similar obligations. So you can ask the trustees or directors for help, but if this is also not effective, you may decide to apply to CSOS.
If you do approach CSOS, prepare your application carefully. Quote the law, check for existing CSOS and High Court orders on the topic and include objective evidence of how a nuisance is being caused. Give evidence of the volume and frequency of the smoke drift. In support of your application include video from your phone or the scheme’s CCTV system, signed witness statements from other occupiers, a diary of exposure times and, if practical, consider having an expert prepare air quality test reports.
When you get to CSOS, take the initial conciliation process seriously. Show you are reasonable. Suggest that the smokers agree to smoke where it will least affect you and that you and they close doors and windows to prevent smoke drift. Be prepared to enter into a settlement that addresses your main issues.
If the matter is not settled, argue your case before the CSOS adjudicator. If you feel you need assistance, apply to be represented by someone who knows the law and the CSOS process.
Graham Paddock is a specialist community schemes attorney, notary and conveyancer. He has been advising clients and teaching students for over 40 years, and was an adjunct professor at UCT for 10 years.
Article reference: Paddocks Press: Volume 16, Issue 9.
This article is published under the Creative Commons Attribution license.
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