• Creator
    Topic
  • #8770
    Jimmy-T
    Keymaster

      Smokers can be banned from puffing away inside their own homes if it affects other residents, and face fines of up to $5,500 if they don’t quit.

      That’s the legal advice given to Flat Chat reader JoMo who is fuming, after complaints about four heavy-smoking tenants in the apartment next to his have fallen on deaf ears.

      “Cigarette smokes and odour come into my apartment day and night,” says JoMo, an owner in the high-rise CBD apartment block. “I sealed every crack and cranny but the building is centrally ventilated.

      “I have contacted the body corporate and estate agent, but to no avail. The neighbours are overseas students and 70% of the building is tenanted.”

      The smoke coming into JoMo’s apartment is breaching a couple of by-laws, one about not allowing smoke to pass over common property, the other about not creating a nuisance.

      • For advice on how to how to pursue a CTTT order click HERE
      • For a TV news report about a woman who is suing her neighbours because of passive smoking, click  HERE.

      “You might remember a few years ago the celebrated case at Highgate where the owners corporation obtained Strata Schemes Adjudicator’s orders against the owners of a lot to stop them smoking in their lot,” says leading strata lawyer Beverley Hoskinson-Green.  “It was a similar  problem: a central ventilation system contaminated with cigarette smoke.

      “The order was made to enforce section 117 of the Strata Schemes Management Act which provides in part: ‘An owner …  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).”

      The legal definition of nuisance refers to things that are harmful (rather than merely annoying) and with estimates that 500 people a year in Australia die from the effects of passive smoking, it would qualify.

      That said, the law is a little hazy on this; you can smoke in your own home, provided it doesn’t bother anyone else, but you can’t stand outside your unit block entrance and smoke there.

      So what does JoMo do?  He could apply for a Consumer, Trader and Tenancy Tribunal order against the smokers.  If the CTTT finds in his favour, the smokers will be ordered to stub it out or face fines of up to $5,500.

      The chances of that proving successful are surprisingly high. The 2006 CTTT Highgate ruling ordered a couple to stop smoking to prevent smoke from their unit going to other units, on the principle of ‘no smoke, no problem’.

      CTTT rulings are not strictly legal precedents but the current strata laws revisions include moves to make it easier for owners corps to control nuisance smoking so the climate is turning against strata smokers.

      • To read the  2006 ruling, click HERE.
      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.
    Viewing 10 replies - 1 through 10 (of 10 total)
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    • #19064
      Anonymous

        Good old Member [name removed], the man with the magic bow-tie and the famous smokin’ case.
        I would say two things.
        Nothing an adjudicator says (or a Member) creates a precedent, i.e. decisons do not bind other adjudicators or Members, and [this member] made some real howlers in his time, was the case referred to one of them.

        It would be interesting to see if CTTT wanted to be consistent on smoking matters.
        Having said that i will butt out.Laugh

        #19070
        Jimmy-T
        Keymaster
        Chat-starter

          I’m working on a design for smoking helmet.  It’s all enclosed with bluetooth and wifi, head-up computer display on the visor, an alcohol tank with tube and a slot for potato chips and nuts (for those who like to Eat AND smoke).

          It will be a bit expensive but it will soon pay for itself because no one gets your passive smoke – more nicotine and carcinogens for you, baby!  I mean, have you seen the cost of cigarettes?  Why would you let all those second-hand fumes go to someone else?

          Maybe I could crowd-source the funding? Time for a smoko!

          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.
          #19092
          asavage
          Flatchatter

            Great to read this in the Fin Review last week! What should a person in Queensland do? I have the same problem…

            #19093
            Cleanair
            Flatchatter

              It is good to see this health threatening issue back in the news again. Several years ago I took a cigarette smoke drift issue to the CTTT but at that time they only tried to bring about a compromise between us and our smoking neighbors. Since then they have continued to smoke and our EC was unable to deal with the matter! Hopefully new Strata Laws will give more force to make smokers responsible for ensuring their cigarette smoke does not drift.

              #19110

              In 2010 I gained an order form the CTTT against the owners of a unit where the tenants smoked. This document outlines how I did it. Might be useful to you, JoMo.

              https://www.facebook.com/groups/176974969498/files/

              #19107

              @SMO said:
              Good old Member [name removed], the man with the magic bow-tie and the famous smokin’ case.
              I would say two things.
              Nothing an adjudicator says (or a Member) creates a precedent, i.e. decisons do not bind other adjudicators or Members, and [this member] made some real howlers in his time, was the case referred to one of them.

              It would be interesting to see if CTTT wanted to be consistent on smoking matters.
              Having said that i will butt out.Laugh

              I know which member you are talking about, and yes, I agree with you that some of his decisions are peculiar.

              In upholding an appeal of that member’s decision, this is what the judge had to say:

              “This rehearing involves consideration of further evidence by the Tribunal Member who has already made unfavourable findings concerning the plaintiff’s credit, and favourable findings of credit of the defendant’s witness. In these circumstances, it is my view that a fair-minded person would entertain a reasonable apprehension that the Tribunal Member might not bring an impartial and unprejudiced mind to the rehearing. The ultimate result demonstrates that the Tribunal Member’s discretion miscarried. There is an error with respect to a matter of law. The appeal is upheld. The decision of [this] Senior Tribunal Member dated 28 September 2004 is set aside. The matter is referred to the Tribunal to be dealt with according to law.”

              #19151

              Dear All,

              What if u live in mixed development with a café or on a park or main street.

              Near a pub.

              People smoke everywhere.

              Get over it. There r harmful substances all around and in all we consume.

              If you find nirvana let me know I will move there with u, in the meantime, live and let live.

              #20039
              robj
              Flatchatter

                Any idea if this would apply in an older building without central ventilation?
                I’m in an older 2br apartment and can’t open any windows due to the smokers below, students I think.

                I have no A/C so on hot days I close all windows to keep the heat out. It still warms up a bit, but I can’t air the place out in the evening when the temp has dropped.

                I’m a tenant, with a useless agent. When I first contacted a lady downstairs, on the bodycorp EC, she promised to sort this out, but the strata manager told her there’s nothing that can be done currently.

                I like to sleep with my window open, but over winter I refrained from this. But with the warmer weather lately, it gets stuffy and I need to open a window overnight. Now I wake coughing and my bedroom smells like an ashtray, depending how late they’ve be at it, on the balcony of course.

                I’ve had a persistent cough for about a month now, and will be visiting my Doc tomorrow.
                If he tells me it’s smoking related:
                -can I take legal action against the landlord/bodycorp?
                – can I go to the CTTT even though I don’t have all the details of the tenant smokers?

                Any help would be greatly appreciated!
                Rob

                #26440

                @JimmyT said:
                Smokers can be banned from puffing away inside their own homes if it affects other residents, and face fines of up to $5,500 if they don’t quit.

                That’s the legal advice given to Flat Chat reader JoMo who is fuming, after complaints about four heavy-smoking tenants in the apartment next to his have fallen on deaf ears.

                “Cigarette smokes and odour come into my apartment day and night,” says JoMo, an owner in the high-rise CBD apartment block. “I sealed every crack and cranny but the building is centrally ventilated.

                “I have contacted the body corporate and estate agent, but to no avail. The neighbours are overseas students and 70% of the building is tenanted.”

                The smoke coming into JoMo’s apartment is breaching a couple of by-laws, one about not allowing smoke to pass over common property, the other about not creating a nuisance.

                • For advice on how to how to pursue a CTTT order click HERE

                • For a TV news report about a woman who is suing her neighbours because of passive smoking, click  HERE.

                “You might remember a few years ago the celebrated case at Highgate where the owners corporation obtained Strata Schemes Adjudicator’s orders against the owners of a lot to stop them smoking in their lot,” says leading strata lawyer Beverley Hoskinson-Green.  “It was a similar  problem: a central ventilation system contaminated with cigarette smoke.

                “The order was made to enforce section 117 of the Strata Schemes Management Act which provides in part: ‘An owner …  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).”

                The legal definition of nuisance refers to things that are harmful (rather than merely annoying) and with estimates that 500 people a year in Australia die from the effects of passive smoking, it would qualify.

                That said, the law is a little hazy on this; you can smoke in your own home, provided it doesn’t bother anyone else, but you can’t stand outside your unit block entrance and smoke there.

                So what does JoMo do?  He could apply for a Consumer, Trader and Tenancy Tribunal order against the smokers.  If the CTTT finds in his favour, the smokers will be ordered to stub it out or face fines of up to $5,500.

                The chances of that proving successful are surprisingly high. The 2006 CTTT Highgate ruling ordered a couple to stop smoking to prevent smoke from their unit going to other units, on the principle of ‘no smoke, no problem’.

                CTTT rulings are not strictly legal precedents but the current strata laws revisions include moves to make it easier for owners corps to control nuisance smoking so the climate is turning against strata smokers.

                • To read the  2006 ruling, click HERE.

                  

                Hi, I’m new here.

                Does this apply in Qld? A new tenant has moved next door to me and now I have to close windows and doors to keep the dangerous filthy crap out.

                #26441
                Jimmy-T
                Keymaster
                Chat-starter

                  @Tambo said:

                  Hi, I’m new here.

                  Does this apply in Qld? A new tenant has moved next door to me and now I have to close windows and doors to keep the dangerous filthy crap out.  

                  Not yet but new laws are being drafted.  have a look HERE and HERE and especially HERE

                  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.
                Viewing 10 replies - 1 through 10 (of 10 total)
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