Smoking on balcony units in QLD is increasingly becoming an issue that owners, occupiers and committees have to contend with on a daily basis as smoke drifts into the units of non-smokers via open doors and windows.
Via their property manager, owners can stipulate that a tenant cannot smoke in their unit. Indeed, some management rights companies proscribe smoking in the units they manage. Bodies corporate can prohibit smoking on common property, however there is currently no law or generic by-law in QLD that can be enforced to stop an owner from smoking in his or her unit or on their balcony.
There is nothing in the Body Corporate and Community Management ACT 1997 (BCCM) by-laws that allows a body corporate to enforce rules regarding second hand smoke from cigarettes. By-law 6 in the BCCM ‘Behaviour of Invitees’ below, does not apply as it only applies to ‘invitees’ and not owners or occupiers.
‘An occupier of a lot must take reasonable steps to ensure that the occupier’s invitees do not behave in a way likely to interfere with the peaceful enjoyment of another lot or someone else’s peaceful enjoyment of the common property’
Section 167 of the BCCM deals with the issue of nuisance and could be construed to cover this circumstance where cigarette smoke from one lot causes concerns or issues for another lot:
‘The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that-
So neither By-law 6 nor Section 167 specifically prohibits smoking on balconies. If the body corporate wishes to do so, it could submit a new by-law motion at a general meeting for acceptance by special resolution to regulate or prohibit smoking on balconies or patios of units and or common property. An SSKB-managed body corporate in Hervey Bay has recently implemented such a by-law with success.
If you would like assistance with a smoking by-law motion please feel free to contact your SSKB Community Manager for advice.