#25680
Jimmy-T
Keymaster

    Under section 153 of  the new strata Act that comes into force on November 30, “smoke from smoking” has been defined as a “nuisance”.  This is significant because it allows residents to pursue smokers who allow smoke to drift into their homes.

    Section 153 (below) says “An owner… tenant or occupier of a lot in a strata scheme must not … use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot” and  “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.”

    So you could seek mediation and then Tribunal orders under section 153 without requiring the committee to get involved on your behalf.  This is a good thing – you only have to convince one person – an adjudicator.

    Also, we all have to review our by-laws within a year of the new laws starting and you could recommend that your scheme adopts Option A of the new model by-laws (which apply to all new schemes but would have to be adopted by existing schemes to have any effect).  

    This model by-law states:

    (1) An owner or occupier, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property.
    (2) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.

    It’s very hard for owners and committees to argue against a by-law that has been written by fair Trading for all new schemes.  You would just be bringing your scheme up to date

     

    153 Owners, occupiers and other persons not to create nuisance
    (1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
    (a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot
    (whether that person is an owner or not), or
    (b) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
    (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.
    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.

    The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.