[Smokeye]

Hi Jimmy,

Pretty sure the Tribunal can’t order the OC to pass a by-law.

That being said, even if we did have a by-law like this, it’s pretty hard to enforce because you’d have to catch them in the act.

IMHO the best way to mitigate this situation is to implement some fire safety measures to balance off the risk of anything happening.

[Smokeye]

@Sage-grouse, this is great news! You are now free to go straight to NCAT and lodge your application.

To answer your question about the chances at tribunal. Hard to say. I’m also not a lawyer, but I would think this would loosely fall under section 153 of the SSMA, also known as the “nuisance” provisions of the Act.

https://classic.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/s153.html

That’s why I’d word my email with the phrase “peaceful enjoyment”.

s1(c): “(c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.”

It’s a long shot but it can’t hurt to try.

[Smokeye]

Sage-grouse. Your actions here are very straightforward.

It sounds like you’ve already raised this with the OC. Do you have their refusal in writing?

Here’s what I’d do.

1. Email: Dear OC, I have previously raised the issue about the common property light interfering with the peaceful enjoyment of my lot. I would like to kindly request that you [insert whatever solution you have]. This is a very easy fix and will cost you next to nothing.
2. Sit back and wait.
3. If, after 14 days, you’ve had no response, or a “get lost” response, you can proceed to mediation. It’s free, but the process is slow. Stick to the facts. It doesn’t have to be an essay. “There is a common property light shining into my lot and causing me distress and loss of sleep. It is a very easy fix. I have raised this with the owners corporation on a number of occasions and they have declined to act on the matter.”
4. The OC will receive the mediation request via your strata manager or whoever you nominate to act on the OC’s behalf. They can either decide to agree to meditation, or they can decline it.
5. Hopefully, they will decline mediation. This gives you the green light to go straight to NCAT.

As always:

• Keep calm
• Stick to the facts
• Document EVERYTHING
• Be clear about what you want

Good luck! Keep us posted!

[Smokeye]

Thanks Jimmy, I have considered that strategy, but being an investor would land me in exactly the same boat as owner-occupier and that is: having my asset devalued or, at worst, destroyed, because of the ignorance of the OC and the negligence of the committee.

Our building is under-insured, we have expensive capital works repairs to do, not enough money to do them, and a dysfunctional committee who spends more time bickering and sending nasty emails than it does actively problem-solving. I would go straight to s237 except I don’t have enough evidence. Yet.

[Smokeye]

I finally bit the bullet and applied for compulsory mediation with NSW Fair Trading. I haven’t been assigned a date yet.

I am prepared for all manner of dirty tricks from my neighbours and I want to make sure that my side of the street is kept as clean as possible so that they have very little to fling at me.

I imagine there will be a 4-6 week wait until the mediation date, and then an additional couple of months before the hearing so I need some way of redirecting the smoke (which is currently several times a day) until the matter is resolved.

I would appreciate any tips or advice that I can take to ensure that my actions and behaviours are above board.

[Smokeye]

“upstairs neighbour takes OC to tribunal to force them to pass an appropriate by-law”

My understanding was that NCAT cannot compel an OC to pass a by-law of this nature but I hope I’m wrong. Do you have any examples of case law that support this? That might be a great option for me in the event of a disappointing vote.

[Smokeye]

Thanks Jimmy. Could you please elaborate on this part? How does the OC become liable if it’s lot vs lot in a dispute against smoke drift?

“failure to pass the new by-laws could expose the owners corporation – and make it clear, that’s all owners – to expensive litigation that they will have no choice but to defend if they don’t pass the by-laws”

[Smokeye]

Hi, me again with the neighbour who doesn’t give a fig that my children and I have to breathe their second-hand cigarette smoke in our apartment on the daily.

If the worst happens and they block my proposal to adopt the model by-laws at our AGM, what are my options? I’m thinking I might suddenly develop a keen interest in DIY smoking my own fish in a bucket on my balcony. Something really smelly like kippers.

Or invest in a bokasi bucket and gleefully spray the “juice” on my balcony plants (that stuff absolutely reeks for miles).

I know this is really pass-agg and petty but I don’t know if I have the stomach or the energy for a full-on legal battle.

NB: You posted this as a new post.  Not allowed.  There is nothing new in this post – just a continuation of the previous thread.

[Smokeye]

Thanks so much, Jimmy. I’m so confused about so many things:

1. what do you mean, the model by-laws will apply by default? If so, what’s the point in adopting the model by-law in the first place?
2. strata laws on nuisance / expensive legal action – what do you mean? I can take my neighbour to NCAT for smoke drift under s153 for nuisance/hazard?
3. moderate conditions that could see them prevented from smoking anywhere in the building, including their own homes – does this mean that if, in the future, smoking is outlawed in strata buildings, they will have nothing to fall back on?
4. Am I allowed to circulate a leaflet to all residents by putting it in their letterboxes? I am the secretary of the EC.

Could you recommend a good strata lawyer whose brain I can pick for a fee? I am in Sydney.

[Smokeye]

Taken from the section of the strata schemes management act at austlii:

“Note : Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.”

I don’t know what to do. Can I breach my strata manager??

[Smokeye]

He’s just written back: “It would be a long bow to use that section of the act [s153] as the issue with smoking to have effective process adopted would require a specific by-law being adopted by the owners corporation.”

So we have to wait until the AGM in March.

[Smokeye]

I just had a thought – if, according to the Strata Manager, the balcony “airspace” isn’t common property and in fact part of the lot itself, then Section 153 definitely applies.

He’s trying very hard not to make any work for himself and hoping that he can fob me off but I will get to the bottom of it.

[Smokeye]

Thank you so much everyone for the responses.

Firstly, as soon as the neighbour moved in she let me know that she was a smoker and invited me to tell her whenever the smoke was bothering me. I did a few cheery “hi, I can smell your smoke” in which case she apologised profusely and hurried to smoke at the other end of her balcony.

However, she smokes out there about 10-20 times a day, and regardless of where she smokes it still floats into my unit.

Secondly, my strata manager is a useless piece of excrement and we are stuck with him for the next 18 months.

Thirdly I am on the EC! There is one other EC member who has also suffered from smoke drift from other residents but he is on the fence about making an issue of it.

The strata manager has quoted us $1,100 to execute and adopt a new bylaw (does that sound about right?).

I find it hilariously ironic that the smokers smoke on their balcony because they don’t want to smell it inside their own house, but in doing so are perfectly comfortable with everyone else’s houses smelling like it. Thanks for nothing …

 

[Author]

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