Smoked out of home

There’s a story bouncing around at the moment about a guy on the North Shore,   a cancer victim who may be forced to sell his unit because residents in apartments below him are heavy smokers who insist on their “right” to blow their toxic fumes into his home.

According to the story, passed on by Flat Chat reader Rachel, this gentleman was diagnosed with cancer last September and is stuck at home. His problem comes from a “massive chain-smoker” who smokes constantly on his balcony below.

But his strata manager has told him the by-laws covering his unit block would not be changed to ban smoking on balconies. However, if my reading of the Strata Act is right, the poor sod doesn’t need a by-law; there’s a state law that already protects his right to breathe fresh air.

Section 117 of the Strata Schemes Management Act says owners and occupiers may not “cause a nuisance or hazard to the occupier of any other lot.” The same section says residents may not “interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot.”

Can smoking on balconies be a nuisance or a hazard? The Government thinks so, with bans on smoking on beaches and at sports venues as well as cafes, restaurants and bars. And that’s before you even get into lit cigarette ends being dropped on to neighbours’ property.

Can you stop people smoking on their own property?  According to a ruling on this a couple of years ago, you can even stop them smoking INSIDE their homes if it causes a  problem for other residents.

Sadly this guy has neither the time nor energy to fight this in the courts.  Surely there’s a strata lawyer out there who will take on this battle pro bono … and maybe create a legal precedent that stops balcony smokers polluting everyone’s homes except their own.

JimmyT will be answering your questions live on James Valentine’s radio show on ABC 702 on Tuesday 25th.

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