Living with Smoke Drift

August 5, 2021

Earlier this year, new legislation changes came into effect for Bodies Corporate in Queensland. This incorporated a number of changes designed to make the operation of a Body Corporate more efficient, through things like electronic notices and meetings. Unfortunately, what it did not do was make any changes to some of the key issues that Bodies Corporate have been complaining about for years, one of which is smoking.

Whilst our colleagues down south have begun to see meaningful decisions and updates to their legislation to incorporate concerns surrounding smoking and second hand exposure, Queensland has yet to catch up in this regard. The legislative review into these issues has been ongoing now for a number of years, with no end in sight.

In the meantime, Bodies Corporate are significantly limited in how they can restrict the rights of residents to smoke within their Lot, which in most cases includes the balcony.

If smoke drift is an issue in your body corporate, read on for our tips to regain harmony.

Whilst any individual owner is free to impose no-smoking restrictions on their tenants, the Body Corporate has no such ability. Over numerous cases it has been consistently ruled that the Body Corporate cannot impose unreasonable restrictions on the fair use and enjoyment of a Lot by its owner or occupier. A Body Corporate can pass a by-law to prohibit smoking on Common Property, but not within the Lots themselves.

Bodies Corporate therefore need to focus on dealing with any issues that arise in a proactive and positive manner. In many cases, the person smoking may have no idea that they are disturbing others. Most residents (including many tenants) will smoke on the balconies of apartments because they believe that this minimises disturbance to others as well as prevents smoke smells from building up within the building. This can in fact have the opposite effect as wind currents can push smoke into the surrounding Lots. A direct approach from the Body Corporate or the on site manager is often appreciated and will resonate better than a written notice or an aggressive confrontation.

The Body Corporate should approach these interactions not with the sole goal of preventing the resident from smoking, but rather reaching some form of compromise that will suit all parties, such as changing the time or location of where they smoke.

In summary, Bodies Corporate should keep the below points in mind when dealing with issues surrounding smoking within the Scheme:

• Nothing in legislation prohibits smoking within the boundaries of an owner’s/resident’s lot

• Bodies corporate should check the plans of the scheme to determine if the balcony/courtyard of an apartment forms part of the lot

• No ruling from an Adjudicator has supported the restriction of smoking within a lot by a body corporate

• Bodies corporate should however make all efforts to inform owners/residents when their smoking is affecting others

• Bodies corporate can restrict smoking on the common property with an appropriate by-law.

This article was contributed by Wayne Hewitt, Partner – Archers the Strata Professionals

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