There have been numerous complaints in recent years from both landlords and neighbours that tenants are smoking cannabis in their rental homes.
And when residents in the area start to complain, landlords are often caught in the middle.
This has not only been experienced by property managers and legal experts in recent years, but IOL published an article a few months ago featuring complaints from readers about this exact thing.
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The question that needs to be answered, however, is whether there is anything property owners and neighbours can do to resolve the situation.
In the case of rental property owners, Rowan Terry, legal counsel at TPN Credit Bureau, says the reality is that the possession, use, and cultivation of cannabis for personal consumption, in private, was decriminalised in 2018. This means that anybody is entitled to grow, possess, or smoke cannabis in the privacy of their own property, including tenants renting a property.
“As such, landlords may not cancel the lease agreement because the tenant is smoking cannabis on the property for the simple reason that the tenant is not in breach of the agreement.”
When it comes to smoking on outside balconies or where common gardens are shared, if the body corporate has rules that state no smoking in common areas, then these rules would still apply. But if the balcony falls within the exclusive-use area of the tenant, then they may smoke on the balcony.
“The only time that smoking cannabis is illegal, is if the rental unit does not permit smoking. In this instance, smoking cannabis in the rental property would constitute a breach of the lease agreement in the same way that smoking cigarettes would constitute a breach of the agreement.
“In this case, the tenant needs to receive three consecutive written warnings to stop smoking in the unit.”
Once the tenant has received three consecutive written warnings to stop smoking, Terry says the lease agreement can be cancelled after the third written warning, giving the tenant notice to vacate.
Lease agreements, therefore, need to be clear and unambiguous about whether the rental property is designated as a smoking or a non-smoking unit.
“If the unit is designated as a smoking unit, then the tenant is obliged to ensure that the smoking will not damage any portion of the property. It may also hold the tenant liable to restore the property to the pre-smoking condition at the end of the lease period.
“If damage has been caused as a result of smoking – for example, if the walls are discoloured, or the carpets smell of cannabis or cigarette smoke – then the tenant is liable for the costs which could include repainting, cleaning or replacing the carpet. These costs can be deducted from the deposit.”
The “bottom line”, is that landlords need to be proactive and ensure that they have put adequate measures in place to protect their property from every conceivable threat, he says.
In November, a Johannesburg homeowner complained that her neighbour’s employee smoked weed “every day and especially at night”, and that the smell permeated her home as he smoked it right underneath her window.
Ann* wrote: “I am a health practitioner and thus anti-smoking. I don’t condone weed smoking on my property…and do not appreciate the health hazards of second-hand smoke. Nor do I enjoy the smell of weed.
“The property next door has ample space in the garden so the smoker could easily choose another space.”
She and the owners of the property have lived “amicably as neighbours for 30 years”, but she wrote that the employee’s habit had been escalating.
Ann had approached the owners about the issue, but said that, as the employee’s home was on the same side of the property as her bedroom, he reverted to the same pattern in his “weed-addled” state.
“When smokers restrict their smoking to a suitable environment I respect that. But this is not a dedicated public space issue. It’s an aberration to second-hand smoke and the smell of weed.
“I can’t imagine how one would handle this in a flat or high-density living,” she said.
In response to her plight, Simon Dippenaar of Simon Dippenaar & Associates stated that the employee was not breaking the law as cannabis use for private consumption was legal in South Africa. At the same time, however, he noted that many people did not allow smoking in their homes and said this was considered socially acceptable.
Still, there could be some ground for legal recourse.
“There is a precedent in law for dealing with obnoxious odours. A case came before the Western Cape High Court a few years ago whereby neighbours of a mushroom farm were driven indoors by the stench from the farm. The farm’s activities were legal and reasonable. It made a type of compost (called substrate) required to grow the mushrooms.
“The judges in the case ruled that the odour from the farm constituted a nuisance.”
Dippenaar explained that Section 24(a) of the Constitution gave everyone the right “to an environment that is not harmful to their health or well-being”. The judges agreed that an environment that was repulsive to the senses of an “ordinary person” was harmful to their well-being.
“Section 28(1) of the National Environmental Management Act 107 of 1998 states that anyone causing ‘significant pollution or degradation of the environment’ must take reasonable measures to prevent such pollution or degradation. If it cannot be avoided, it must be ‘minimise[d] and remed[ied]’.
“‘Pollution’ is defined as a change in the environment having ‘an adverse effect on human health or well-being’, caused by substances and by odours from an activity.”
He also stated: “Section 35(2) of the National Environmental Management: Air Quality Act 39 of 2004 requires an occupier of any premises to ‘take all reasonable steps to prevent the emission of any offensive odour caused by any activity’ on their premises. ‘Offensive odour’ is defined as ‘any smell which is considered to be malodorous or a nuisance to a reasonable person’.”
While Dippenaar said it was doubtful whether the odour emanating from a cannabis cigarette would be classified as pollution or degradation of the environment, it was a smell that [could be] malodorous to [people] and cause a nuisance, and therefore was an offensive odour.
His advice to Ann, which can also be adopted by other neighbours in her situation, was: “If you have been seen to ask your neighbour in a friendly manner to put a stop to the employee’s behaviour, it is likely you will be deemed to be a reasonable person. You could also argue that the inevitability of breathing in the employee’s second-hand smoke constitutes an environment that is harmful to your health or well-being.”
He added: “If you were to raise an action against your neighbour, you would likely have a strong case. But you would also likely put an end to your ‘years of living amicably’. Good neighbours are invaluable. Try to sort it out between you as friends.”
*Name changed for privacy
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