Smoking in strata


Should there be a blanket ban on smoking in strata? This has long been a litigious issue.

Why? Well, in strata reduced living space and the close proximity between each apartment often means one owner’s habits directly impact others.

For a non smoker, the wafting of smoke onto their balcony or through their windows can be enough to ruffle a few feathers. Meanwhile, smokers may argue that their balcony is private property and no law should prevent them from using it as they please.

Lot owners may not be aware of what Queensland legislation actually prohibits when it comes to smoking in strata. So here is a quick breakdown.

In Queensland, the Tobacco and Other Smoking Products Act 1998 holds specific restrictions on smoking in community titles schemes. These restrictions prohibit smoking in common areas and shared facilities, for example; pools, tennis courts, BBQ areas, gyms, games rooms and so on.

But what about balconies? According to the Body Corporate and Community Management Act 1997, there are no specific provisions on owners who smoke on their property, inclusive of balconies. However, it does state that lot owners must refrain from “using their unit or common property in a way that causes nuisance or hazard, or unreasonably interferes with the use or enjoyment of another unit, or common property.”

So the question that stands is; can smoking be justified as a nuisance to other owners who do not smoke? Does it interfere with the enjoyment of others living in close proximity? Who is right in this situation? Or is legislation simply not clear enough?

Currently, it is up to the office of the commissioner for body corporate to provide information and dispute resolution to owners. While legal advice can not be provided, all issues of nuisance must go through the office of the commissioner.

If the problem seems to escalate, bodies corporate can seek legal advice to assist in individual circumstances.

In regards to legislation, there seems to be good news. Currently, the Body Corporate and Community Management Act 1997 is undergoing a full review which will include consideration to smoking on balconies.

It is an independent review which is currently being carried out by the Queensland University of Technology Law School. For owners who are unsatisfied with smoking legislation in community titles schemes, they are encouraged to participate in the review.

Attorney General Jarrod Bleijie has said public consultation and input will be an important feature of the review. Owners are able to contribute their views and experiences and respond to issues papers as they are released.

To have your say and to stay up to date with the progress of the review, visit www.justice.qld.gov.au

 

 



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Recent Comments

8 Comments

pam On December 11, 2013 | Reply

Smoking on balconies is a major problem for our apartment complex.

Whether we are having friends over for an enjoyable meal, having children visit, enjoying a balmy evening on our balcony, enjoying time in our own home, sleeping at night we are inconvenienced by smoke invasion from neighbouring balconies at any time day or night.

The presence of smoke requires us to close doors and windows and in warm weather turn on our air conditioner (which is costly) whilst the smokers enjoy the outside elements. Smoking is a serious health issue as passive smoking is dangerous and a risk to all of our family .

Why are all these problems occurring? Because smokers if they have to smoke wont smoke indoors and destroy their own air – they prefer to inconvenience others by their thoughtless actions

In summary I have no objection to people addicted to smoking doing so inside their apartments but smoking on balconies should be banned by law as it is in cafes, malls, platforms, public buildings etc.

    Joan On December 17, 2013 | Reply

    I agree Pam. I and my neighbour both have private use courtyards. The smokers go and sit outside to smoke. The beautiful river breezes that we get unfortunately blow all the smoke directly into my unit. Unfortunately I do not have airconditioning, so am forced to shut my front door and swelter. I currently have a chest infection and it is causing me no end of problems. Something needs to be done about people smoking in such close proximity to others. I do hope Body Corporate laws change in this regard very soon.

      Irene Ciobo On December 30, 2013 | Reply

      I agree too Pam and Joan. A building complex is not the same as a private house, and should be treated the same as public buildings. Apart from the smell & health risks, we also need to address the litter issue from the cigarette butts which smokers, all too often, throw over their balconies. Obviously, they do not respect the laws of gravity which means that the butts sometimes land onto balconies below.
      I’m in favour of a NO SMOKING policy in high-rise building complexes. Smokers do not have the right to disturb their neighbours with smoke fumes, and unsightly butts thrown over their balconies. At times, butts are still lit; a potential fire risk.
      I also hope that laws are changed regarding smoking in high rise buildings.

Irene Ciobo On December 30, 2013 | Reply

I live in between to other balconies. Smokers on each side means that I too need to keep everything closed as the smoke causes me to cough. Then I have smokers directly above me, who drop their cigarette butts into a large planter box which is attached to my balcony, creating unsightly litter and an awful smell. It’s like having a very large ash tray attached to my balcony.
I welcome some strict rules regarding smoking in building complexes.
Irene

Bettina Westaway On January 6, 2015 | Reply

Our complex comprises of a small three pack with individual front courtyards receiving ocean breezes. The middle unit has been rented to a smoker, he has a lease stating he is allowed to smoke in the front courtyard yet the smoke is entering both other units which are owner occupied. Surely this hinders our enjoyment and rights to comfort of our own properties. Seems to me the lease is in opposition to standard Body Corp By Laws.

John Stewart On January 13, 2015 | Reply

We always stay at apartments on our holidays. We are non-smokers and detest the wafting of smoke from other units. Usually, both couples smoke and it renders the balcony out of use for us. All windows and doors also need closing to keep the smell out. Even had to change rooms at Hamilton Island recently because the couples in units on both sides and below, left a permanent smoke haze across all the units. Also, never stay in a ground floor courtyard unit as it is the target for all refuse including live butts from the higher units.

Ann Theodorakis On January 13, 2015 | Reply

I would like to see this ban cover not only owners of units as the same problem affects renters as well. In my complex of 42 units, all the units are non-smoking, so when signing the lease, smokers had to AGREE to ONLY smoke on the balcony! It’s been a nightmare for all non-smokers.
So I hope the legislation can go further to cover everyone.
Thanks

Steve Byrne On January 13, 2015 | Reply

I disagree with all above. I have been on the committee of our complex for over 4 years and the committee has never received a complaint. Maybe this issue is just a lot of noise by a few.
When you buy into an apartment complex you know you are going to be living in close proximity of your neighbours and must realise some are going to smoke.
Why should a smoker in a Unit complex not have the right to smoke when this same restriction does not apply to house dwellers. Houses are built so close to each other these days that the same problem must exist.
Try talking to the neighbour who smokes and come to some sort of arrangement. As for the littering of butts, enforce the by-laws.

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