One of the most popular articles we’ve written for the SSKB newsletter has been on smoking.
It is one of the vexed issues of our times – especially in strata communities where committees have to balance competing interests of occupiers who each have the right to the lawful enjoyment of their properties – and that includes having a smoke.
The conflict comes when the right of an occupier to be smoke free is impinged through ‘smoke drift’, frequently from cigarette smoke drifting across open balconies.
In Queensland, body corporate communities cannot pass a by-law demanding a blanket ban on smoking in the complex as a whole, but may ban smoking in common areas if they are enclosed.
But be aware: communities cannot impose greater restrictions on residents than exist under the Tobacco and Other Smoking Products Act 1998 (Qld), to do so would be considered oppressive or unreasonable and would be deemed inconsistent with the Body Corporate and Community Management Act 1997 (Qld).
However, there are options if smoke is causing another occupier distress. A community may pass a smoking nuisance by-law consistent with the general nuisance provisions in the BCCM legislation.
The occupier of a lot included in a community titles scheme must not smoke a tobacco product, or permit the smoking of a tobacco product, on the lot or the common property in a way that—
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
At this stage there has been no move in Queensland to copy the NSW’s strata laws which allows smoke drift to be declared a nuisance and for communities to designate a smoking area within their common property.
SSKB will continue to educate residents and lot owners on the effects ‘smoke drift’ and their rights and obligations under the legislation. We are committed to helping foster a harmonious environment in strata title communities.
In a recent example, SSKB helped to negotiate a compromise between a smoking resident and the Body Corporate, in which the resident agreed to only smoke indoors, and arranged the fitting of a waterproof seal to the balcony doors to reduce cigarette smoke seepage to other residents.
If you are unsure about the by-laws regulating smoking in your scheme, contact your Body Corporate Manager. They can outline for you the rules relevant to your individual scheme.