Smokers need to be aware of new changes to strata scheme legislation before telling Owners Corporations to butt out of their habit.
Significant amendments have been introduced which affect how residents and Owners Corporations deal with smoking in strata schemes as a part of the massive overhaul of the New South Wales Strata Schemes Management Act 1996 (NSW).
Residents who smoke can still indulge on their individual lots and surrounding airspace. However, issues arise where this smoke drifts into the airspace of balconies on other lots. This is particularly a problem in developments where air conditioning systems service multiple units, since smoke can be to be internally vented into other lots.
The recently released Strata Schemes Management Bill 2015 (NSW) has a new section on what defines a ‘nuisance’. Specifically, owners and tenants cannot use or enjoy their lot in a way which interferes with the use or enjoyment of other lots or common property. Depending on the circumstances, the Bill states part of this interference with the enjoyment or use may be the intrusion of cigarette smoke.
Current strata law in NSW allows for individuals to take residents who smoke to the NSW Civil and Administrative Tribunal if their actions are creating a nuisance or a hazard. These powers remain in the new Act, but are strengthened by the new sections which specifically state ‘smoke drift’ can be considered a nuisance or a hazard. The reforms include a proposal to create a model by-law dealing with smoke drift for Owners Corporations, which can be adopted retrospectively or in new schemes.
The amendments also significantly increase the by-law enforcement powers of Owners Corporations.
Under the new legislation, Owners Corporations can send a letter in the first instance to the offending resident notifying them of their breach. If the resident continues to be in breach of the by-law, the Owners Corporation can now issue a notice to comply with the by-law.
Under the amended legislation, Owners Corporations and residents retain the right to take the matter to a Tribunal hearing if letters and compliance notices are unsuccessful. The current Strata Schemes Management Act 1996 permits NCAT to impose a fine of $550 for each offence on a resident who breaches a by-law. This amount will double to $1100 under the amended legislation. NCAT will also be given the power to issue a further fine of up to $2200 per offence, if a further breach occurs within 12 months.
The proposals in the Strata Schemes Management Bill 2015 are unparalleled and far reaching. SSKB will ensure you are up to date with the status and how they effect your rights and responsibilities as a result of these new legislative changes. Stay up to date with changes that affect your community by visiting our website regularly. If you are unsure about the current by-laws regulating smoking in your scheme, contact your Owners Corporation Manager. They can outline the rules relevant to your individual scheme.