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One word and strata smokers are stubbed out
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JimmyT
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21/07/2015 - 6:42 pm
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The days of the ‘fireflies’ – smokers who puff away on the balconies and terraces of their high-rise homes – are numbered in NSW.

The government hasn’t banned smoking in apartments or on balconies outright but it is handing apartment residents a big ashtray in which to stub out their nicotine addicted neighbours’ nasty habit.

In fact, it’s just one word, contained in a footnote to one of 300 clauses in 120 pages of the draft strata law reforms issued for discussion recently.

But the reference to cigarette smoke as a ‘nuisance’ (in the legal sense) will have a profound effect on the way we live in apartments and townhouses.

It gives strata residents – owners and tenants – the power to take their neighbours to the NSW Civil Administration Tribunal (NCAT) to ask for orders forbidding them from smoking on their balconies, or even inside their own homes.

This is what the footnote says:

Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.

The reluctant passive smokers would still have to show that fumes were drifting into their apartments or townhouses, but at least they wouldn’t have to prove that it was a problem in the first place.

So why, given that they are cracking down on smoking everywhere from pavement cafes to prisons, doesn’t the government just ban it outright or allow strata schemes to create by-laws banning smoking all the way through their unit blocks?

“People have a right to do as they please within the confines of their own homes, including apartments,” says leading strata lawyer Stephen Goddard, chairman of the apartment owners lobby group the Owners Corporation Network. “But they also have a duty of care to ensure their behaviour doesn’t adversely affect their neighbours.

“As it stands, strata schemes can ban smoking via their bylaws, but only on common property which the Act specifically empowers them to manage.

“However, any by-law that attempted to control how people behaved in their own homes would probably be struck out the first time it was challenged in a court. Similarly, parliament wouldn’t approve a change to the law that was such a serious reduction of fundamental property rights.”

So defining smoke as a nuisance will be part of the law, rather than a by-law, meaning it will apply to all strata blocks, old and new – making it easier to enforce.

“Strata committees and individual residents won’t have to fiddle around with Notices To Comply, which are a notoriously unreliable way of managing disputes in strata schemes,” says Daniel Linders, Group Managing Director of Strata Choice strata managers. “If there is a problem they will be able to seek orders at NCAT, with serious fines if the smokers don’t comply.”

The draft Strata Schemes Management and Strata Schemes Development Bills, available on fairtrading.nsw.gov.au, or HERE on this website, will be open for feedback until 12 August. Final Bills will be introduced to Parliament later this year.

This story by Jimmy Thomson first appeared in the Sun-Herald

 

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traceysc4
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23/07/2015 - 2:22 pm
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Hi Jimmy – this is great progress. A friend of mine who is an owner-occupier has spent a couple of years trying to restrict the smoke wafting up from the rental unit below her. Regular gatherings (which is another issue) of 10-12 men all puffing away on the balcony  at once have produced overwhelming smoke issues in hers and others apartments. Going through the convoluted process has meant she has had 2 months smoke free so far but it took a long time to get to that point. This should make it a little easier if she has to deal with this issue again.

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gtyk
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02/03/2016 - 2:02 pm
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Hi all,

 

Just wanting to seek advice regarding a similar topic. I had posted here before, received some good advice, went back to the strata managers, hitting a brick wall.

 

I have a ground floor apartment. I am an owner occupier. The tenant above me, smokes, and drops his ash directly down. A lot of ash is blown/dropped directly down into my property, which then never leaves (my “verandah” is recessed and the wind would never clear it away). I have been writing to the strata people for 6 years and sending photographic evidence. They have spoken to the tenant. He agrees to use an ash tray. I have lots of new ash on my property every day.

 

They said they would send breach notices to the tenant, owner and agent. Ash keeps happening. They tell me they can’t fine the tenant. I asked them to start a tribunal action against the tenant. The strata people tell me this needs to be voted on by the owners committee, and given the cost of initiating an action, and likelihood of failure, they will likely not vote for it to go ahead.

 

The reasons given to me for likely failure of a tribunal action:
– can’t prove the ash is from above (there is one balcony only above the person above me, I have never seen them smoke)

 

I have always politely spoken to the tenant above me when I have observed him smoking and dropping his ash down. He agrees fairly nicely. Ash keeps raining down.

 

I’m getting desperate. I am considering
– not paying my strata fees
– collecting the ash and posting it to the strata committee/tenant above  me.

Could anyone give me some advice? The way my front fencing and gate is, there’s no way it’s a passing by person flicking their ash into my property. It’s from above

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Sir Humphrey
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02/03/2016 - 6:30 pm
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gtyk said
They said they would send breach notices to the tenant, owner and agent. Ash keeps happening. They tell me they can’t fine the tenant. I asked them to start a tribunal action against the tenant. The strata people tell me this needs to be voted on by the owners committee, and given the cost of initiating an action, and likelihood of failure, they will likely not vote for it to go ahead.

In ACT legislation, if you can request that a breach notice be sent to another resident. If a notice is sent they have to tell you that it has been done within 14 days. 

Most OCs will have a general rule to cover nuisance. IE that you can’t do something in one unit that causes a substantial annoyance or nuisance to someone in another unit. Depending on the wording it probably has a qualifier to say that it has to be ‘substantial’. IE no proliferation of breach notices over very minor things. The trick is convincing people that the ash amounts to a substantial nuisance. Time would be part of that. Something you would tolerate for a short time becomes substantial if it continues for a long time. 

I expect the advice is correct that it takes a resolution of the EC to take a dispute to the tribunal. That is what we have in the ACT. 

Causing nuisance would be breach of the tenant’s tenancy agreement so a breach notice could be sent simultaneously to the owner and the tenant and they can be held jointly responsible. Perhaps the EC would agree to write to both, even indicating that the matter could be taken to the tribunal, even if they privately think they are unlikely to take it that far. That might get some action nonetheless.

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Alpop
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09/07/2016 - 2:38 pm
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Where are we likely to stand with this scenario? Two separate strata properties that join at the fence line with the back-yard area of two town houses parallel. One family /tenant are heavy smokers. The other non-smokers. Yep, I’m the non-smoker. Our neighbours ‘live’ in the back patio area and smoke continuously. My master bedroom and main living area is barely two meters or so away. My bedrooms and living areas fill with smoke if I don’t shut all windows, doors etc to minimise it. I have asked politely for them to consider the close proximity but they remain heedless. Like most people, we choose the path of least conflict. Under the new start laws will we be able to stop this nightmare?

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Sir Humphrey
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10/07/2016 - 10:32 pm
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Most OCs have a generic bylaw/rule/article that covers ‘nuisance’. Anything that is not covered by a specific rule but causes substantial annoyance can be covered, at least in principle, by the general rule. 

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JimmyT
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11/07/2016 - 10:15 am
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The difference in the new law is that ‘smoke from smoking’ has been defined a s a nuisance – i.e. a legal term rather than just something that is bloody annoying.

If you can prove that the smoke is coming into your home and that it is coming from your neighbours you can go to NCAT and ask them to issue orders to prevent this from happening.

Peter is right is saying you can do this now but it’s not just a by-law.  Section 117 of the NSW strata Act says that residents and their guests must not “use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not).”

Section 117 also says residents must not “interfere unreasonably with the use or enjoyment of the common property” or “use or enjoy the common property in such a manner … as to interfere unreasonably with the use or enjoyment of any other lot.”

So you could run a case at NCAT right now. The big difference in the new laws is that they specify smoking as a hazard – just in case you get an NCAT nitwit who thinks passive smoking isn’t really a problem.

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Sir Humphrey
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11/07/2016 - 2:57 pm
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Thanks JT. I think everywhere has very similar wording, which was my point. Nice to see that in NSW it is a provision within the Act, not just left to a rule/bylaw.

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