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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.
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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One thing the cancer patient could do is shut his window. This may assist with keeping out the cigarette smoke, the toxic and lethal exhaust fumes from cars, trucks motor bikes and 4 whell drives etc. Other nasties would be in the shampoo he uses, his toothpaste and shower gel. etc etc. I have no idea what he might be eating but maybe he is also ingesting toxic chemicals from the crap put into on onto our produce. Not to mention the toxins and free radicals he is absorbing through his skin when he takes a walk somewhere in his vicinity.
I suppose we are led to believe through the propaganda that it's just cigarette smoke that causes all our health problems. But nobody seems to give a thought to the atomic bombs that have been set off by the thousands and are in our environment floating about and landing in all sorts of places and take 50,000 years to become harmeless.
Not many seem to put two and two together and realise that approximatley only 1%- 2% of people smoke cigarettes in Australia these days yet the cancer figures are on the increase with approximatley 3 in 8 people (Possibly more) contracting this dreadful thing. And in China approximately 75% of the population smoke cigarettes yet their cancer numbers are less than ours. (Per ratio) Go figure!
So our balcony man may shut his window or even get a court order to stop his neighbour smoking on his own balcony, but this will not solve the problem. Will it!?
I just wanted to add that does this massive chain-smoker, who supposedly smokes constantly on his balcony below is even aware of the unfortunate situation of the gentleman that is living above him?
Although it is very unfortunate to be diagnosed with cancer, wouldn't the effort of trying to communicate with this massive chain smoker be better served than kicking up a fuss about how to stop this individual from smoking on his own property?
If the smoker below doesn't even know about this unfortunate chain of events offcourse he would think that it is ok to smoke on his balcony. Seems like the story portrayed could be a bit biased and one sided. I mean how do you know when the smoker downstairs is smoking inside their apartment. In my view, just complaining about it is not going to get the problem solved for you.
Just trying to help give some insights from what I've read, about the other party(smoker downstairs), which seems to have been left out of the article that has been published.
Kitty Boyes said:
One thing the cancer patient could do is shut his window. This may assist with keeping out the cigarette smoke, the toxic and lethal exhaust fumes …
Kitty Boyle.. representative of which tobacco company??
Your post is laughable. In our block we currently have a young woman who sits on her balcony with her friends smoking away into the early hours most days. The smoke travels into all the neighbouring units and STINKS. It is rude, inconsiderate, offensive and a health hazzard. For starters you end up shallow breathing all night and wake up tired and un-rested.
Closing windows?? That's a great idea on a summer night Kitty Boyle, that way we can have NO breeze come in to cool the unit down. And yes, we did try that before sweating ourselves to sleep.
This is a health issue and it's a basic respect, courtesy and consideration issue. I'd love to blast my music loudly and have parties etc but I don't because I respect my neighbours, it's that simple.
Lets just hope strata can do something about it because polite requests and the Police have had no lasting effect.
What you are saying about toxins in general is missing a large part of the point Kitty Boyle. Cigarette smoke is dirty and disgusting and stinks. I don't imagine lying in a bedroom or sitting in a lounge room filled with passive smoke would be good for anyones health either..
This is what smokers need:
https://hilobrow.com/wp-content/uploads/2010/07/cone-of-silence-1.jpg
My observation is most (not all but most) smokers are inconsiderate, insensitive, thick-skinned and thoughtless. Thoughtless? Why would you choose to deliberately, purposefully inhale tobacco smoke? And why would you sit outside doing that to the inside of your body, while making the effort to preserve the smell and decor of your flat?
If it is not against a bylaw then it is not against a bylaw.
If smoking is not against the law then it is not against the law.
I thought medium to high density living was about compromise. This works both ways. Not just for one group with their own particular position. I have sympathy for the guy, but for the larger issue whilst smoking is still legal then it is a fact of apartment living that some people might smoke. It could be worse. They could listen to Rhianna.
I don’t smoke, but friends do. So maybe one night a month max there may be a smoker on the balcony who has 3 over the night, so hardly chain smoking. So the next door neighbour makes a fuss. He, of course BBQ’s on his balcony every single night. So what. I shut the door when he is cooking. It’s not a drama. I understand that he enjoys cooking on a BBQ, but how about some understanding from his end?
The guy in the unit below me smokes at night. Maybe 4 or 5 from 5-11 at night, so hardly unreasonable. He’s a good guy apart from that so I say live and let live. There needs to be an expectation of some level of disruption to our ideal life when living in close proximity. Either live with it, move out, or spend all your efforts whingeing, moaning and getting worked up over trivial matters.
Oh, and if you have an issue with what people are doing. Just speak to them. It’s amazing what that can achieve. Don’t act like a child, slamming doors, running off to the Strata Manager or throwing things at people.
I agree with the isolated incident in question – hell, I’m sure most reasonable people, when confronted with that situation, would either smoke indoors or leave the property. But, we don’t have access to the other side of the story in this instance. And unlike most people I am not going to jump on the evil smokers are scum and are morally reprehensible bandwagon, which seems to becoming more prevalent (coming at this from a libertarian, non-smoking position). I’d like to hear what the full story is – within the local paper, which I receive, someone who lived in the same unit block made the comment that there is a lot more to this story. I reserve judgement on the matter until I hear this.
But I think that there is a wider issue, which is what I alluded to, and that is the increasing over regulation of life in general. I don’t care if they guy next door bbq’s a lot of the time. That is his life. I do not think it appropriate for people to attack those who are carrying out legal activities, or even illegal activities that do not cause harm (in a legal sense), in their own dwelling. What next? Unmarried couples being refused entry to a unit block for the sake of “family values”?
I grew up in 500ha of land, then moved to 10ha of land, then a suburban block, then an apartment in the inner city. I’ve gone from having no neighbours within 10kms to having neighbours on all sides. But you know what, minor inconveniences are really not that much of a drama. So what if the guy in the unit above me has his friends over on a Friday night and they listen to music until midnight most weekends. So what if the guy below me smokes. So what if the guy next door bbq’s. That is all how they want to live their life and I am not going to interfere for the sake of my own preconceived notions on how life should and shouldn’t be lived. Yeah, sometimes smoke blows in from the BBQ and from the neighbour’s cigs, but leave the door open and 5 minutes later all the smell is gone. Hardly the end of the world. No worse than cooking some fish in the apartment (I suppose that next we will be told that this has a negative impact on other peopl I’m sure some of the things I do might annoy my neighbours. I know that my car has a loud exhaust pipe for instance, but it hardly gets driven, except during the day on weekends, oh, and the afore-mentioned friend who smokes on my balcony once a month or so. But if you want peace and quiet and no intrusion from other people then perhaps unit living in a large city isn’t for you.
Dear Bloggers and Owner Affected
I would be happy to assist this person on a pro bono basis.
There are a number of options, such as:
- make a section 47 by-law to probihit smoking in the lot and common property; and
- make an application for mediation in the Office of Trading; and
- if mediation is unsuccessful make an application for adjudicators orders in the Consumer, Trader and Tenancy Tribunal seeking an order restraining smoking on balconies under section 138 of the Strata Schemes Management Act 1996 for breach of secttion 117 of the Act.
Regards
David Bannerman
Bannermans Lawyers
(02) 9929 0226
I agree – if something is in a by-law then by all means it should be complied with. And if it causes serious issues with other occupants (more than just the “I don’t like that” level) then it should be addressed as such.
But, if it is something that someone else finds annoying that another unit occupant does, then it can generally be solved by talking to them. Most people are generally pretty reasonable and may not realise what they are doing is causing an issue. I’m a firm believer in the sit down and talk like grown ups about it. Don’t like smoking next door, go and have a chat with them, come to an arrangement. Even evil smokers are generally (with the odd exception, same as anyone) pretty reasonable. Some may be renters, in which case they generally can’t smoke inside. I know that the property manager I use has that as a standard clause.
The instances cited are pretty clearly at the extreme end of the spectrum, and should be dealt with as such. For everything else, people should relax just a bit more. Live and let live. And if you still have an issue, be an adult about it, and just let them know your concerns. You’d be amazed at how effective it is.
Despite all this, I still love apartment living. Wouldn’t have it any other way.
Now, if there was just some way of making the person in my unit block who keeps on throwing pizza boxes in the recycling instead of normal garbage…
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