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 residents 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.
Owners Corporation communities in Victoria can make rules to completely ban smoking in common areas such as shared courtyards.
With respect to smoke drift where it is causing a nuisance, occupiers can use the Model Rules to seek redress.
Model rule 1.1 – Health, safety and security of lot owners, occupiers of lots and others
A lot owner or occupier must not use the lot, or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier, or user of another lot.
Model rule 1.1 (or an equivalent) could potentially apply where a person is smoking in their apartment and smoke is infiltrating another apartment or the common property.
Model rule 3.1(1) – Use of common property
An owner or occupier of a lot must not obstruct the lawful use and enjoyment of the common property by any other person entitled to use the common property.
Model rule 3.1 (or an equivalent) could potentially apply where a person is smoking in the common property (such as entrances and hallways) in a manner that exposes other residents to second hand smoke.
Model rule 5.1 – Behaviour of owners, occupiers and invitees on common property
An owner or occupier of a lot must take all reasonable steps to ensure that guests of the owner or occupier do not behave in a manner likely to unreasonably interfere with the peaceful enjoyment of any other person entitled to use the common property.
Model rule 5.1 (or an equivalent) could potentially apply where guests of an apartment owner smoke in the common property or where guests smoke within an apartment and smoke infiltrates the common property.
At this stage there has been no move in Victoria 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 Owners Corporation, 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 Community Manager. They can outline for the rules relevant to your individual scheme.