Living in a community housing scheme can be exciting when it involves getting to know close neighbours from different places and backgrounds and their diverse perceptions and preferences. But it can also be challenging when you realise that everyone also has different levels of tolerance for things like loud music, barking dogs, mess, security breaches and parking problems, and that outside intervention may be required to help get everyone on the same page.

“An increasing number of South Africans are buying homes in sectional title schemes and gated estates, and most do very well at resolving any differences with their neighbours in a spirit of goodwill, says Andrew Schaefer, MD of leading property management company Trafalgar.

“There are always a few people, though, who will continuously break conduct rules and insist on doing just as they please even when they know it is causing their neighbours distress, and in those instances it is good to know that the Community Schemes Ombud Service (CSOS) can help.”

Specifically, he says, Section 39 of the Community Schemes Ombud Service Act provides for an adjudicator to help control “nuisance behavior” by ordering a person to act, or refrain from acting, in a certain way.

Not everything is ‘nuisance’ behaviour

“But before you lay a complaint at the Ombud’s office, it is important to understand that not everything you disagree with or disapprove of will necessarily be regarded as ‘nuisance’ behaviour. Indeed, one of the tenets of SA’s nuisance law is that neighbours should allow for a reasonable amount of give-and-take, especially when living in a community housing scheme.

“When you choose to live in such a scheme you must obviously expect to be aware of your neighbours and to have to deal with reasonable levels of disturbance as they go about their daily lives, and the same goes for them.”

“When you choose to live in such a scheme you must obviously expect to be aware of your neighbours and to have to deal with reasonable levels of disturbance as they go about their daily lives, and the same goes for them.”

However, says Schaefer, the other side of that equation is that every owner should be considerate and try not to cause harm to others while using their property, and that everyone is entitled to protection from others’ unreasonable behaviour.

“Thus one can broadly define ‘nuisance behaviour’ as abnormal conduct that would cause material harm or damage to the average neighbour and amount to an abuse of ownership rights. What is more, even normal activity can be a nuisance if it is deliberately intended to inconvenience or annoy another.

Examples of ‘nuisance’ behaviour

“Examples could be holding rowdy parties every night, putting others’ safety at risk by always leaving a security gate open, frequently allowing visitors to leave a mess on common property and deliberately parking in someone else’s place every day. These days, it could also involve sending abusive texts, notes, pictures or videos to anyone who has complained about such behaviour or tried to stop it.”

And if things get to that stage, he says, it is probably safe to assume that the dispute is not going to be resolved internally and that you need to apply to the CSOS for help. This office will assess your application to ensure that it’s valid and will then probably refer the matter for conciliation – a less formal hearing when an independent CSOS conciliator will try to help the parties reach a resolution.

“But if that is not possible, the matter will be referred for formal adjudication, which involves a thorough investigation of what the problem behavior is, where and how often it occurs, whether it is deliberate, whether it is in any way reasonable, whether it is avoidable, and the extent of the harm being done.

“All of this evidence will then be presented at a formal hearing for consideration by the CSOS adjudicator, who will hand down a determination that is binding on all parties and enforceable in the Courts.”

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