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Topic
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Our strata is small – just 4. We are at the end of the block, unit 2 now tenanted, includes a heavy chain-smoker; unit 3 owner/occupier a moderate smoker, unit 4 tenanted.
* We are old. I have one lung and am asthmatic; my husband terminally ill; I am his carer.
In the past year of tenancy, the chain-smoker who is in residence for 2 weeks every 3 months, sits in the courtyard and smokes just about 24/7. Up until last week, we have compromised; however, during the last 2 weeks I had an asthma attack, doctor in attendance 2.am.(cost=$175.00), administered medications + oxygen and advised hospitalisation. I was unable to go to hospital for treatment because there was no one to care for my husband.
I subsequently contacted the SM and asked that he phone this person which he apparently did without success. I again contacted SM and asked that he write to all of us re: smoking regulations.
The outcome: moderate-smoker abused me, told me that I had harrassed his chain-smoking ‘mate’ and the owner of 2 was also indignant, abusive & thoroughly rude. To whit; they will “never speak to me again for being so awful” to this chap who, in their opinion, is “bloody wonderful”
I’m sure he is wonderful, I’m not being being facetous, but I fear that this event is only a precurser to what I and my husband can lexpect in the future.
(After the above: As well, our chain-smoker entertained 5 friends for 8 hours – all of whom smoked incessently in the courtyard, (music blaring…another matter). We said nothing…what could we say).
I must say, if this smoking is ‘not a problem’ why doesn’t he smoke inside?
So, I’m asking if there are genuine smoking by-laws on the way, if so WHEN?
In my opinion, this is an urgent matter – I would appreciate any information ASAP.
Many thanks,
Annabella.
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Replies
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Hi Annabella
I think you misunderstand the function of by-laws. Even if the new laws were to include an anti-smoking by-law, it would only apply to your scheme if your owners corp subsequently adopted it.
For that to happen, no more than 25 percent of owners at a general meeting would have to object. To put it another way, you would have to have 75 percent of owners voting at the AGM, doing so in favour of the by-law.
What you need to find is your current by-laws and look for any that relate to the “peaceful enjoyment” of your lot or, more specifically, to smoking on common property. If they already exist, then you need to pursue that through Fair Trading and/or NCAT. To find out how, click here.
However, even if there is no by-law, you can rely on Section 117 of the law (below) which says that owners and occupiers must not use their lot or common property in a way that creates a nuisance or hazard to other residents.
It would seem on the face of it that excessive smoking is both a nuisance and a hazard to you. By the way, the new laws will, for the first time, define “smoke from smoking” as a nuisance.
So my advice would be to gather up your evidence, doctors’ letters, supporting letters from neighbours and friends about the volume of smoke and frequency of smoking, then apply to Fair Trading for mediation. Your neighbour may refuse to attend mediation but, for you, it is a compulsory precursor to seeking orders at the Tribunal (NCAT).
If you are successful at NCAT – and there are no guarantees – and the smoking continues, the smoker may be liable for fines of up to $5500.
If you wait until the new laws come in at the end of this year (probably) the NCAT process will be a lot quicker and easier because the deeply flawed “paper” assessment of cases – where the person best at filling in forms wins – will be scrapped.
Meanwhile, here is the part of the Act that you should be asking your strata manager to send to the heavy smoker, asking him to cease and desist or face the consequences.
117 Owners, occupiers and other persons not to create nuisance
(1) An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause 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 such a manner or for such a purpose as to interfere 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 such a manner or for such a purpose as to interfere 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.
(2) This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of:
(a) in the case of a freehold strata scheme, section 28L of the Strata Schemes (Freehold Development) Act 1973, or
(b) in the case of a leasehold strata scheme, section 52 of the Strata Schemes (Leasehold Development) Act 1986.
(3) In this section, lessee of a lot in a strata leasehold scheme means a sublessee of the 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.
Hi there
Sorry to hijack your post Annabella. Did you have any luck?
I’m new to this forum and a current renter in the same apartment for the last 7.5 years. There has just been a new tenant move in next door who is a heavy smoker out on the balcony which comes straight into our place and with summer coming our apartment gets extremely hot so we live with doors and windows open for months. Plus my husband is an asthmatic amongst other issues. I’m at a loss with how to deal with this now and more confused after reading so many opposing views.
I’ve been advised that there is nothing in the strata by-laws of the building to prevent smoking on the balconies or even common property. I’m wondering if the new rules coming in next month will resolve this issue or are these only applicable to new strata plans?
So far I have made a request through the agent for the executive committee to make a by-law change but I know that is a long shot.
I’ve also made a complaint to the agent about it and they have contacted the tenant after my requests to my neighbours were ignored, and they have replied saying they will be more aware and under stating how much they actually smoke. But i’m not holding out hope that this will improve much.
If the new rules coming in won’t help me out, am I able to utilise the ‘right to peaceful enjoyment’? What or how specifically should I go about this? How will that be received by the agent and landlord? I obviously don’t want to be evicted or have to move until such time as we can afford to buy, which is a lot further down the track.
Many thanks in advance for your assistance!
Kind regards
Jess
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.
Thank you so much for your help Jimmy.
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