Smokers can be banned from puffing away inside their own homes if it affects other residents, and face fines of up to $5,500 if they don’t quit.
That’s the legal advice given to Flat Chat reader JoMo who is fuming, after complaints about four heavy-smoking tenants in the apartment next to his have fallen on deaf ears.
“Cigarette smokes and odour come into my apartment day and night,” says JoMo, an owner in the high-rise CBD apartment block. “I sealed every crack and cranny but the building is centrally ventilated.
“I have contacted the body corporate and estate agent, but to no avail. The neighbours are overseas students and 70% of the building is tenanted.”
The smoke coming into JoMo’s apartment is breaching a couple of by-laws, one about not allowing smoke to pass over common property, the other about not creating a nuisance.
- For advice on how to how to pursue a CTTT order click HERE
- For a TV news report about a woman who is suing her neighbours because of passive smoking, click HERE.
“You might remember a few years ago the celebrated case at Highgate where the owners corporation obtained Strata Schemes Adjudicator’s orders against the owners of a lot to stop them smoking in their lot,” says leading strata lawyer Beverley Hoskinson-Green. “It was a similar problem: a central ventilation system contaminated with cigarette smoke.
“The order was made to enforce section 117 of the Strata Schemes Management Act which provides in part: ‘An owner … lessee or occupier of a lot must not: (a) 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).”
The legal definition of nuisance refers to things that are harmful (rather than merely annoying) and with estimates that 500 people a year in Australia die from the effects of passive smoking, it would qualify.
That said, the law is a little hazy on this; you can smoke in your own home, provided it doesn’t bother anyone else, but you can’t stand outside your unit block entrance and smoke there.
So what does JoMo do? He could apply for a Consumer, Trader and Tenancy Tribunal order against the smokers. If the CTTT finds in his favour, the smokers will be ordered to stub it out or face fines of up to $5,500.
The chances of that proving successful are surprisingly high. The 2006 CTTT Highgate ruling ordered a couple to stop smoking to prevent smoke from their unit going to other units, on the principle of ‘no smoke, no problem’.
CTTT rulings are not strictly legal precedents but the current strata laws revisions include moves to make it easier for owners corps to control nuisance smoking so the climate is turning against strata smokers.
- To read the 2006 ruling, click HERE.