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My downstairs neighbor has a BBQ mounted on the external wall/ground floor below our living room windows. If they are using their BBQ and our windows are open the smoke sets off our smoke alarm. At such time if we happen to be home we need to close 2 windows, fan smoke away to stop the alarm. Plus, the smoke has soiled the walls above the windows which required (getting up on a ladder) sugar soaping to clean yearly.
When discussed at the recent Strata Meeting of owners nothing was resolved when suggesting the BBQ be moved away from the building- across their garden or a hood installed above BBQ to deflect smoke coming into our apartment upstairs. What leg do I have to stand on to demand a solution to prevent smoke coming into our apartment? Is their any strata legislation to back my demands when pressing this issue to the Strata committee?
Thanks for your input. CAJ
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The Strata Schemes Management Act specifically forbids owners from creating “nuisance” and I think the amount of smoke and the positioning of the barbecue falls well within that category. The Act also forbids owners from interfering with other residents’ peaceful enjoyment of their lot. Agaim this seems like a clear breach.
Your first option is to explain to this person that they are breaking strata law on two counts – creating a nuisance and interfering with the peaceful enjoyment of another owner’s lot (see below) and ask them to move the barbecue. Or you could ask the EC to do this on your behalf.
If the downstairs neighbour refuses, you can ask the EC to issue a Notice To Comply on those grounds. This carries a fine of up to $550 for non-compliance.
If the EC declines to get involved, you can go to Fair Trading and the CTTT yourself to ask for an order against the owner.
Obviously, option one is the best but if it doesn’t work you will find out how to pursue this either as a Notice To Comply or as a CTTT order HERE.
Meanwhile, here is the relevant section of the Act.
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.
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.
I was going to start up my own topic, when I came across this one. We bought into our SP just over 2 years ago & were given a copy of the by-laws at that time. One of the more interesting ones is the requirement to not use the balconies & other outside areas after 9 pm, in order to keep the noise down in the complex. Would anyone care to contribute opinion on this?
daphne – if you read Jimmy’s post (#2) and particularly the quote from Sect 117 of the NSW Strata Schemes Management Act then like me you’ll conclude that whilst your Plan’s Special By-Law (SBL) is perhaps intended to qualify Sect 117, it’s superfluous.
The SBL cannot prohibit residents and their guests from using any part of their Lot/s or the Common Property, and in any case who’s to say that the use of those areas at any time couldn’t create a nuisance or hazard to others? It’s the nature of the use that’s at issue, not the time.
Thank you Whale. We certainly do use our balcony at all times, but keep the noise down after hours, as a matter of courtesy. The inclusion of it in the by-laws is possibly intended as a hint of intimidation at the first contact with Stepford. There has been no problem on this issue, by the way. I am merely curious as to whether this is a common inclusion in strata by-laws.
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