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