In 1818, John Keats made the following observation: “There is nothing stable in the world; uproar’s your only music.”  Owners living in a Sectional Title scheme may be able to relate.

Over and above financial issues, the Community Schemes Ombud Service records noise nuisance in schemes as being the second highest dispute statistic. Where you have people living in close proximity, you are bound to experience all sorts of arguments arising about noise levels, as well as about what kind of noise is and isn’t acceptable. Noise nuisance is defined as any sound which disturbs or impairs the convenience or peace of any person. The categories of noises we would be dealing with are loud music or a musical instrument or television, shouting and talking loudly, an animal barking excessively loudly, testing a vehicle by revving the motor, operating power tools or machinery.

In the Sectional Title context, “Duties of Owners” in Section 13 of the Sectional Titles Schemes Management Act 8 of 2011 is instructive. Section 13(1)(d) states that an owner must use and enjoy the common property in such a manner as not to interfere unreasonably with the use and enjoyment thereof by other owners or other persons lawfully on the premises. Section 13(1)(e) goes on to say that an owner must not use his or her section nor 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. It is really important to note that noise nuisance should be continuous and substantial in order to qualify as problematic. How does one deal with this type of invasive behavior when it raises its ugly head? Jerome “no -nonsense ”  Carelse knew exactly how to approach his neighbor, Witbooi Stefanus ,who lived above him on the second floor in a complex near the Taalmonument in Paarl.

Witbooi had recently installed a jacuzzi in his unit, which happened to be directly above Jerome’s bedroom. Witbooi cultivated the habit over a few days of coming home after gym and immersing himself in his jacuzzi for two hours. The bubbles made him happy. The sound of the jacuzzi motor did not have the same euphoric effect on Jerome. By the end of the first week, Jerome, who was interning at a law firm, wrote a stern letter to the Trustees as well as to Witbooi requesting that the jacuzzi be removed with immediate effect due to the terrible noise nuisance which was affecting his sleep. After receiving no response, Jerome approached the Community Scheme Ombud. Armed with audio evidence, signed affidavits from other complaining neighbours, and the decibel report from the Council official at the local Municipality, he attended at the mediation hearing held in Cape Town. Witbooi also attended the mediation-he had heard that awards could be made against absentee Respondents and he was not going to take any chances. Upon placing all complaints on the table, the parties managed to reach an amicable agreement. It was agreed that the jacuzzi would not have to be removed, subject to the strict condition that its use was reasonable, not at all hours of the night, and for a period of 10 minutes at a time. In this instance, sanity prevailed. In many cases, it does not, whereupon the matter will then be referred to adjudication. An adjudication award is a decision of the adjudicator and can be made an order of the High Court or Magistrates’ Court. An adjudicator or judge would always have to look at each case objectively. Many people are more sensitive to noise than others. These peculiar sensitivities cannot be taken into account. There should be a balanced approach. Is the noise really unreasonable, or is the complainant inflexible and difficult? In my experience, which has now spanned over 20 years, I can confidently say that noise nuisance issues can be resolved where both parties are mature and rational people. It’s all about mutual respect and consideration. I have seen Conduct Rules in schemes which state that “silence” must be maintained after certain times and on Sundays. That rule could be set aside on the basis of “impossibility of performance.” Living, breathing people cannot maintain silence. Nor should they be expected to. Proactive, involved Trustees often successfully facilitate internal mediations which would then have the effect of avoiding the dispute resolution process completely.

Marina Constas

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