In 2022, South Africans endured more than 130 days of load shedding, leaving residents with no alternative than to invest in alternative energy sources such as generators. In high-density community schemes, generators are known to be a point of contention. Not only are generators by design very noisy, they also emit potentially harmful fumes which could interfere with members’ right to use and enjoy their property.
The Sectional Titles Schemes Management Act (“the Act”) imposes a number of duties and obligations on both owners and trustees which should be considered prior to installing a generator within a scheme.
An owner is obligated to 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 terms of the use of common property, an owner may not interfere unreasonably with the use and enjoyment thereof by other owners.
Owners are therefore not permitted to make use of a generator should it cause a disturbance to the peace and quiet in the scheme and it is the owner’s responsibility to ensure that the generator does not create unreasonable noise or air pollution likely to interfere with the enjoyment of another member’s section.
In our experience, trustees have been disinclined to resolve a nuisance complaint regarding the use of generators deeming such an issue a neighbour dispute. In terms of the Act, trustees are obligated to ensure that a member or any other occupier of a section or exclusive use area does not –
- use the common property so as to unreasonably interfere with other persons lawfully on the premises.
- use a section or exclusive use area so as to cause a nuisance.
The Act furthermore imposes a duty on trustees to ensure compliance with any law or by-law regulating the use of a section or exclusive use area. In terms of the Noise Control Regulations, 1999 as published in terms of the Environment Conservation Act No. 73 of 1989, no person shall make, produce or cause a disturbing noise, or allow it to be made, produced or caused by any person, animal, machine, device or apparatus or any combination thereof.
It is therefore the trustees responsibility to take all reasonable steps to ensure that the use of a generator does not interfere with the rights of the other members as provided for in the abovementioned Noise Control Regulations.
Notwithstanding the duties and obligations imposed on owners and trustees in the Act, it is worth noting that in certain schemes where the use of generators may be suitable due to the layout of the scheme, the use of these alternative energy sources may be permitted subject to adequate regulation in terms of the scheme’s governance documentation. The rules of a scheme can, for example, regulate the following aspects:
- The type of generators allowed to be used by members;
- The location of where generators may be installed; and
- The times when generators may be used.
Should an owner or occupier breach any of the provisions of the Act or the scheme’s rules, it is important for the trustees to understand that they may be required to intervene to protect the rights of other owners and occupiers.
Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, is a Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law.
Article reference: Paddocks Press: Volume 17, Issue 10.
Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, is the Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law.
This article is published under the Creative Commons Attribution license.
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