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After not the slightest whiff of cigarette smoke for years, all of a sudden we think we have a closet (open window) smoker right undeneath us, in a shared unit, 10 feet or less from my tween son’s bedroom. Also an ex-executive committee member and reformed smoker, miffed at not getting re-elected, has lapsed and taken to smoking downstairs in the common property thus sharing his second hand smoke with 5 other apartments.
I have discovered lots of things about strata living from the wonderful Flat Chat including the ‘hazardous nuisance’ item in the NSW Strata Titles Act, Section 117.1.(a) & (b) & (c).
In short, I can’t see how anyone can actually get away with smoking anywhere in a strata including its common property unless it’s in a hermetically sealed room. Am I right to think that, in both the examples I cite, the smokers are in breach of the NSW Strata Titles Act and can be asked to stop on the basis that it’s a ‘hazardous nuisance’ and interferes with my ‘enjoyment’? It sounds so deliciously simple.
And yes I agree! Barbecue smoke shouldn’t be shared either!
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I agree BBQ smoke….spicy cooking…strong smells of laundry softeners…certain parfumerie smells in lifts and hallways…
Dragan forgot the clouds of methane vapour everywhere, on balconies, public transport, lifts, offices, small shops, big shops, arcades, malls, cinemas……. I wonder how many Stepford residents have NOT let those off right next to their offending neighbours & disturbed their peace & enjoyment under S117.
@daphne diaphanous said:
Dragan forgot the clouds of methane vapour everywhere …Sailing close to the wind, DD?
I refer Flatchatters to this yarn .
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.
Many a time dear JimmyT, especially on public transport & lifts, where there is no escape.
Sort of related …. seems smoking everywhere is getting a bad name and being prohibited (and so it should).
CHINA’S capital has passed a smoking ban for all indoor public places and offices,
full story …
@Costa said:
And yes I agree! Barbecue smoke shouldn’t be shared either!Some genius on my building’s executive committee has suggested removing barbecue smoke from the list of toxic fumes – such as cigarette, cigar and tobacco smoke – forbidden on balconies and common property.
Sooner or later someone is going to lift the Aussie blinkers and ask if, given its volume and the number of carcinogens in it, barbecue smoke going from a balcony into someone’s home isn’t more dangerous than the occasional cigarette.
Of course, it’s un-Australian to suggest anything of the kind. However, this web page from the American National Cancer Institute makes sobering reading ,as does THIS, THIS and THIS.
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.
Talking about hazard reductions in the human body, we have adjusted our diet & lifestyles by various means to stave of cancer, heart attacks & strokes. What do we expect to die of, especially in strataland (sine we must); Alzheimer’s?
@daphne diaphanous said:
Talking about hazard reductions in the human body, we have adjusted our diet & lifestyles by various means to stave of cancer, heart attacks & strokes. What do we expect to die of, especially in strataland (sine we must); Alzheimer’s?Barbecue smoke – or fire!
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.
@JimmyT said:
@daphne diaphanous said:
Dragan forgot the clouds of methane vapour everywhere …Sailing close to the wind, DD?
I refer Flatchatters to this yarn .
Almost makes me wish we had a lift so I would have the opportunity to pass silent comment on a certain few of my neighbours (most are lovely and for them I would refrain from such comment).
While there seems to be some fun being had in this thread (and why not?) this can be a deadly serious issue. Fair to say, for some people, smoking is a drag.
But in all seriousness, in Queensland, the Body Corporate Legislation provides that a person must not use their lot or common property in a way that causes a nusiance or hazard or that interferes unreasonably with the use or enjoyment of another lot included in the scheme (BBCMA s 167).
However, the line between ‘inconveinence’ and unreasonable interference can be difficult. The QCAT has determined that to amount to a nuisance (as a matter of law), the cigarette smoke emanating from the adjacent lot must be ‘of such volume or frequency that it would interfere unreasonably with the life of another lot owner of ordinary sensitivity.’
Is smelling smoke an unreasonable interference? Depends, how often does it happen? How much smoke is actually entering the lot (is there any way to objectively measure this?) Is it always coming from the same source? Are you jsut hyper-sensitive to it?
Smelling smoke isn’t the same as breathing smoke. People have a right to smoke and the body corporate cannot prohibit this.
(I’m not saying I agree, I’m just saying this is the position at law in Queensland).
So many things do come down to judgements about what is ‘reasonable’ and what is not.
We have a few unit owners who seem to think that it is unreasonable for anyone to do anything that causes even the slightest change to the outlook from any window of their unit. Another thinks it is unreasonable to be able to hear ANY noise created by a neighbour.
Most people accept that living in quite close proximity to others will obviously and predictably lead us to be aware of them occasionally, whether it is a little BBQ smoke or some talking or music or whatever. Most accept that people will alter the landscaping in their units or that minor changes to the common property landscaping are necessary occasionally.
I had a very charming neighbour who was very quiet nearly all the time but about three times a year he would have a big party with very loud music. He would include all the neighbours and it would go late into the night. I don’t think anybody minded because he was so nice about it and he did not do it ‘unreasonably’ often.
Dear Queenslander, what a sane contribution & bravo to QCAT! What I found really objectionable earlier was the first post on this topic (see below), relishing the prospect of interfering with everyone, using S117 as a general clobbering tool. Not one single person commented on it.
“In short, I can’t see how anyone can actually get away with smoking anywhere in a strata including its common property unless it’s in a hermetically sealed room. Am I right to think that, in both the examples I cite, the smokers are in breach of the NSW Strata Titles Act and can be asked to stop on the basis that it’s a ‘hazardous nuisance’ and interferes with my ‘enjoyment’? It sounds so deliciously simple.”
@Queenslander said:
Smelling smoke isn’t the same as breathing smoke. People have a right to smoke and the body corporate cannot prohibit this.
I can’t really see how someone can smell smoke without breathing it.
An owners corporations can prevent people from doing anything that breaches by-laws, and that includes smoking on common property (like balconies) or in a way that interferes with another persons’s health or peaceful enjoyment of their lot.
The legal precedent has been set in NSW that if you can’t prevent smoke from travelling from inside one person’t unit to another’s, then the only way to do so is for the smoker to stop smoking or move out.
Arguing about degrees of distress caused get us nowhere. It’s either a problem or it isn’t. Smoke kills people and affects their health in other ways. As ever, Queensland finds a way of letting the selfish do what they want at everyone else’s expense
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.
This whole smoking thing is kind of the result of manipulated mass psichology. Nobody ever mentioned smoking marihuana. In my previous post I have mentioned all the other examples where “if you can smell it, it is dangerous for you” but nobody took it seriously. People live in apartments for100s of years and they all managed somehow. I find this selective targeting anoying. Same as this current asbestos hysteria….. Unreasonable fear of nuclear power….gluten free craze.
@Dragandeewhy said:
This whole smoking thing is kind of the result of manipulated mass psichology. Nobody ever mentioned smoking marihuana. In my previous post I have mentioned all the other examples where “if you can smell it, it is dangerous for you” but nobody took it seriously.So, “manipulated mass psychology” is the cause of cancer, heart disease and emphysema? Get real.
People who smoke stink enough to take the smell with them when they walk into a room. Doesn’t that tell you something about the lingering effects of smoke.
People who lived in apartments 100 years ago had other things to worry about – that doesn’t make smoking OK.
I will cheerfully set fire to the next person who tells me “you breathe in pollution all the time so what difference does cigarette smoke make?”.
It’s called harm minimisation – it’s why we have speed limits and road rules and asbestos laws … to protect ourselves against idiots who don’t care about their own health and expect everyone else to suffer as a consequence.
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.
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