In November 2015 we discussed a case where a landlord was ordered to pay $11,000 in compensation to his tenant when the unit was declared unsuitable for habitation due to the smoke that had drifted in to the unit from a chain-smoker downstairs.
At the time when this case was determined by the NSW Civil and Administrative Tribunal Appeal Panel, if a strata scheme wanted to prohibit smoking, then generally a specific by-law prohibiting smoking was required. This is still the case under the existing strata law, namely the Strata Schemes Management Act 1996 (NSW) and the Strata Schemes Management Regulation 2010 (NSW).
However, this position is about to change when the Strata Schemes Management Act 2015 (NSW) (“New Act”) and the Strata Schemes Management Regulation 2016 (NSW) (“New Regulation”) commence on Wednesday, 30 November 2016.
The New Regulation introduces a new ‘model by-law’ that deals exclusively with the issue of smoke drift in strata schemes. Similar to a model by-law on keeping of animals, the new model by-law regarding smoke penetration introduces the following 3 options:
- Option A: Smoking by an owner, occupier or their invitee is permitted on the lot, but the owner or occupier must ensure that the smoke does not penetrate to the common property or any other lot;
- Option B: Smoking by an owner, occupier or their invitee is permitted on the lot, but the owner or occupier must ensure that the smoke does not penetrate to the common property or any other lot. Smoking on common property is also permitted only if it is in a designated smoking area or with the written approval of the owners corporation. A person who is permitted to smoke on common property must ensure that the smoke does not penetrate to any other lot.
- Option C: Smoking by an owner, occupier or their invitee is permitted on the lot, but the owner or occupier must ensure that the smoke does not penetrate to the common property or any other lot. Smoking on the common property is expressly prohibited.
If no option is selected, the default position is Option A.
Further to the new model by-law, section 153 of the new Act clarifies that penetration of smoke from smoking into a lot or common property may be regarded as a nuisance or hazard. This means that owners or occupiers who allow smoke to drift from their lot into another lot or common property could also be in breach of section 153 of the new Act.
It is important to note that the new model by-law regarding smoke penetration is contained in schedule 3 of the New Regulation and it only applies to new strata schemes registered after the commencement of the New Act. If an owners corporation would like to adopt the smoking model by-law, it will need to approve the new model by-law via a special resolution at a general meeting and register the new model by-law on the common property title.
The information contained in this article is not legal advice. This article is intended to provide general information in summary form only. You should not rely on the content of this article as legal advice. If you would like advice specific to you and your situation, please contact us.