How to solve smoking disputes in community living
In Australia, there’s a stigma associated with smoking, and while it’s now banned in many places, some people would argue that smokers have the right to do what they want in their own homes.
When people live in apartment buildings, however, smoke drift and second-hand smoking can affect other residents, particularly during the holiday season when people are more inclined to throw parties and be around the home more.
If you’re wondering what your rights and options are within community living, here’s what you need to know in each state:
New South Wales
Smoking has been acknowledged as a potential nuisance or hazard to occupants. Residents may be able to enforce restrictions through adopting by-laws, which should define smoking-related rules so that everyone can enjoy the property in the best possible way. If the by-laws are unclear or unhelpful, there’s the option of adopting model by-laws. This can be formalised in the annual general meeting by passing a special resolution. The model by-laws on smoke penetration include:
(1) An owner or occupier, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property.
(2) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
(1) An owner or occupier of a lot, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property, except:
(a) in an area designated as a smoking area by the owners corporation, or
(b) with the written approval of the owners corporation.
(2) A person who is permitted under this by-law to smoke tobacco or any other substance on common property must ensure that the smoke does not penetrate to any other lot.
(3) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
In the event of a dispute, residents should attempt to resolve matters by having a reasonable and polite discussion with all parties involved. Some occupants may not be aware smoke is drifting to their neighbour’s lot. If discussions fail and by-laws continue to be breached, there’s the option of taking the matter to the NSW Civil and Administrative Tribunal.
A neighbour’s smoke drift coming from private property can be hard to rule against as lot owners are entitled to smoke in the confines of their own property. At the moment Victorian laws only allow owners corporations to make rules that completely ban smoking in common areas such as shared courtyards. However, in Victoria the Owners Corporation Regulations 2007, Model Rule 1.1 stipulates ‘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’. An argument could be made that second hand smoke is a health hazard.
In Queensland, it may be possible to restrict smoking if the building has a by-law on cigarette smoke and the smoke affects other lot owners. Owners have the right to enjoy their property but out of courtesy, everyone should be mindful of their neighbours and their rights to peaceful enjoyment. Under section 167 of the Body Corporate and Community Management Act 1997: “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:
(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.”
Therefore, smoking could be restricted but demonstrating the nuisance or unreasonable interference can be difficult.