Commissioners Corner: Smoking in Strata (QLD)
There are few more vexed body corporate issues than cigarette smoking.
Its potential for negative impact in a community titles scheme should never be under-estimated.
Queensland, like many other parts of the world, in recent decades, has undergone a significant shift in the way it regulates cigarette smoking.
What once was acceptable is no longer the case.
A community titles scheme generally involves high-density living – a significant number of people living, occupying, or working, in a relatively small space.
Impacts such as second-hand smoke or smoke drift, that might be manageable in a more spread-out environment, can become an issue in a confined area.
There are legislative provisions concerning smoking that must be considered.
Section 26R of the Tobacco and Other Smoking Products Act 1998 regulates smoking and provides for smoking in enclosed common property areas of community titles schemes.
I will attempt to explain here how cigarette smoking might be addressed and regulated in a community titles scheme – and explore what options could be available.
Firstly – as always – communication is the key.
Take a typical scenario. Neighbours in the lot directly below yours smoke out on their balcony every evening.
It is possible they may not be aware their cigarette smoke drifts up from their balcony into your space.
The first step is to communicate. Go and talk with them. Explain the impact their cigarette smoke is having. See if an agreement can be reached to suit all parties.
The body corporate, or its committee, also may have a role to play.
It can communicate to owners and occupiers a reminder about what by-laws apply that regulate smoking.
When it comes to by-laws, it is important to remember that, in general terms, a by-law is designed to ‘regulate’, not ‘prohibit’.
A body corporate considering a by-law to ‘outlaw’ smoking, in a lot, or on common property, should bear in mind previous orders on the topic, including North Shore Apartments [2003] QBCCMCmr 505: http://www.austlii.edu.au/au/cases/qld/QBCCMCmr/2003/505.html.
Section 180(3) of the Body Corporate and Community Management Act provides that “if a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use”.
So, while the idea of cigarette smoking may be distasteful to some, it would not generally be possible for a body corporate to prohibit, or even restrict, smoking, in a lot.
Where cigarette smoking is lawfully occurring within the boundaries of a lot, and the smoke is drifting out into another lot, it may be possible to consider a by-law enforcement process.
Of course, there first has to be a by-law in place specifically about cigarette smoke.
Pursuing some form of dispute resolution about a breach of the nuisance provision of the Act (section 167), is another possibility.
The onus is on the party initiating the by-law process, or the dispute under section 167, to demonstrate how the smoking is creating a nuisance.
In particular, adjudicators’ orders have found – for example, in Karmasea [2012] QBCCMCmr 428 http://www.austlii.edu.au/au/cases/qld/QBCCMCmr/2012/428.html – that the test for nuisance includes establishing the activity (in this case, smoking) was “of such volume, or frequency, that it would interfere unreasonably with the life of another lot owner of ordinary sensitivity”.
For accommodation/holiday letting providers, it is important to remember that a by-law “must not discriminate between types of occupiers” (Act, section 180(5)).
In other words, a by-law regulating smoking would not be able to discriminate between what is applicable to lot owners and what is applicable to occupiers/tenants.
Some accommodation providers take great pains to advertise their property as a “no smoking” property, and a landlord may have the option of controlling smoking through the terms of their lease.
While this can be an effective marketing tool, the landlord, or accommodation provider, can only control smoking within the lot.
When making a claim about a property being smoke free, there should be some legal basis on which a claim of this nature is made – for example, has the body corporate made such a decision, and how valid and enforceable might that decision be?
“House rules” and other such guidelines, might be useful in providing occupiers some ideas about parameters for their conduct.
But unless the “house rules” are incorporated into by-laws, they are generally not enforceable.
As always, seeking qualified legal advice may assist lot owners and bodies corporate to better consider some of these complex matters.
For further information and for general queries about the body corporate legislation, please contact our Information Service on Freecall 1800 060 119, email bccm@justice.qld.gov.au or visit our website www.qld.gov.au/bodycorporate.
This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.
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Given it is a well established fact second hand smoke in any quantity is a danger to health it stands to reason that in terms of volume and frequency that any amount of smoke drift would breach section 167.
In high rise wher balconies are immeadatly adjacent to each other it’s not possible to permit smoking for health and safety reasons..
It’s interesting that smokers generally smoke on their balconies and close their unit so they don’t foul it with smoke without any consideration about other people trying to enjoy fresh air on their own balcony or the smoke drift going into adjacent units fouling the inside of those units.
Hello Cameron and thank you for your comment. If you’d like any further information about the body corporate legislation, including dispute resolution processes available, call my information service on 1800 060 119 or email your question to BCCM@justice.qld.gov.au.
I find this article meaninglessness. I believe the victims of second hand smoke living in units would have known the limitations and loop holes to the advantages for smokers. Smoking can never be regulated in apartment complex, it can only be restricted. It is not a fair deal for non smokers. I have explored all the legal options but in vain, it was a pain during my wife’s pregnancy and now baby. Our hands were tied and no reprieve.
Hello Frank and thank you for your comment. Body corporate issues can be difficult to resolve. If you’d like to discuss your issue further you may like to contact the information service about dispute resolution options available to you through my office. Call on 1800 060 119 or email your question to BCCM@justice.qld.gov.au.
The Final recommendations for Options Paper Body corporate governance issues was released just recently by QUT Panel, and is open for submissions. It deals with Body corporate governance issues, amongst other parking, towing, pets and smoking.
It proposes some solutions to smoke free buildings (for new schemes, the developer can establish a smoke free by-law from the onset) and suggests the option to the established schemes to become smoke free by adopting such by-law with resolution without dissent.
You can find the paper here http://www.uoaq.org.au/news-link/113-consultation-now-open-on-bc-by-laws,-debt-recovery-and-scheme-termination – please make submission to have your opinion heard. Submission close 5 May 2017.
Jana Koutova, Executive Officer, Unit Owners Association of Queensland
I forgot to mention that the current laws are set up, smoking is prohibited within 10m of my son’s school, prohibited in shopping malls, prohibited in restaurants, prohibited in the work place, but it seems difficult to prohibit within 2m of my lounge room when holiday makers smoke on the balcony below my unit. The irony is in public places we can just move away from smokers, however when in my own home I cannot, yet legislation doesn’t prohibit smoking within any distance from the opening of another unit. I thought it was auwful when I looked at a unit open for inspection a few weeks ago, it was a beautiful day and the agent had all the north facing windows and balconies open, only to be totally ruined by the smell of smoke drift from the unit below pouring into the apartment. I wonder if that’s why the owners wer selling?. The laws seem a bit upside down to me.
I have found some great audio on the Internet of the most disgusting coughing. I intend to play this on my balcony for the duration of the cigarette smoke pollution in my apartment. Seems smokers have the right to pollute my lungs without any recourse.
I would hope some of these people who write the comments above have researched their fears in regards to health, a good link to use is https://en.wikipedia.org/wiki/List_of_IARC_Group_1_carcinogens, this is direct from the World Health Organisation. After reading this I would also hope if they do have fears that they do not drive a vehicle, eat red meat, go out in the sun or drink alcohol, as they are all in the same category G1 as second hand smoke. I do understand some people do not like the smell of tobacco smoke and some people do.
We all live together and tolerance and good communication should be expected from all residents.
Can I please have plain English answer.
Can a person smoke in their own enclosed unit?1
Can a by law of the building approve or prohibit smoking in one’s own unit?
Thanks
Hi Margaret, thanks for you enquiry. I apologise for the delay in my response. I recommend you contact the Information and Community Education Unit of my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate for some further information.
I made an evidence based submission to BCCM in 2016 providing factual details, breached actions and relevant evidence for penalties against unlawful conduct by a BCCM management company.
They provided a details of what they wouldn’t do and handed the problem back.
The authority has “no teeth” and acts in favour of particular interests.
Hi Jo, Thanks for your comment. My Office does not have jurisdiction over any alleged misconduct of body corporate management companies. General information regarding the body corporate legislation can be obtained from the Information and Community Education Unit. They can be contacted on 1800 060 119.
I live next to a school and have neighbours who smoke on their balcony. As the balcony is less than 5 metres from the school boundary, and smoking is banned within 5 metres of schools, does the law prohibit them from smoking on the balcony or not?
Hi Helen, thanks for your enquiry. I apologise for the delay in my response. My Office does not cover the smoking laws regarding the distance that individuals have to be from certain public spaces when smoking. You may wish to direct your enquiry to Queensland Health.
Hello i live in a unit block of three i am the second one and the first unit there tenants are chain smokers right i have changed bylaws my little sister has chronic asthma the smoke drifts i have contacted the real estate to fix it but they have said its not illegal to smoke they do not care about this but i also have provided this real estate with a medical certificate is well we have also talked with the body corporate and they said theres nothing more we can do now my sister has gone to hospital over this issue we have talked to the tenants about this they have told us to f off this is a big issue cause it drifts and covers and stinks the whole center….
Thanks chris
Hi Chris, thanks for your enquiry. I apologise for the delay in my response. Smoking is a topic that is being looked at in the QUT property law review. More information about the review, including papers http://www.justice.qld.gov.au/corporate/community-consultation/community-consultation-activities/current-activities/review-of-property-law-in-queensland
I live in a beautiful unit, with a long balcony stretching past the 10 units. The neighbours, two units up, smoke constantly from approximately 5 am in the morning until about 9 pm at night. IF we try to sit on our balcony, we end up having to go inside AND close our doors and windows as the smoke drifts through.
Having a son who gave up smoking with difficulty, I understand what a terrible addiction it is. Despite a cough that sounds like they are going to bring up their stomach an moment, the addiction is solid. Worse still the tenant across from us, is now good friends, so she comes and smokes on OUR side!!!
I would like to propose a by-law at the next body corp meeting to the effect that Owners place ‘non smokers’ in their advertised lease. Also, that owners can only smoke within the confines of their unit, if they wish to smoke outside, they need to be considerate of other residents.
IF we had known their were smokers so close, we would NEVER have bought this unit. Unfortunately, with the downturn in the market in our town, we cannot sell at this time as we would lose money.
CAN we legally make a by-law as such.
Thank you.
Hi Tracey, thanks for your enquiry. I recommend you contact the Information and Community Education Unit of my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate for some further information.
I would like to echo many of the comments venting frustration at how little can be done; even going through Body Corporate can have little impact. I am unable to have doors and windows open to access the breeze without having smoke waft throughout the unit. From 6am through to as late as 10pm. We used to be able to use our balcony, but no longer due to smoke. I have left messages for all residents advising of the impact the smoking and nothing has changed.
I am unable to install hardwood floors in my unit as the noise may impact other residents (mainly those below)- I’d have to have an engineer come in to test the noise levels. Yet smokers can impact the health and comfort of any number of residents. It is absurd.
Re the 2014 review , including papers at http://www.justice.qld.gov.au/corporate/community-consultation/community-consultation-activities/current-activities/review-of-property-law-in-queensland
Please advise the outcome of this review and whether there have been any regulations or community property by laws put in place to restrict or prohibit smoking that affects adjoining unit holders in close proximity to a smoker in a community title scheme.
Hello Susuby,
Thank you for your query and apologies for the delay in responding to you. Updates on the status of the Government’s property law review will continue to be posted on the Department of Justice and Attorney-General website at http://www.justice.qld.gov.au.
What does the committee need to do to change the smoking rules in un enclosed common areas.
Thanks for your question Brendan. Information about making by-laws can be found on our website:
https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/by-laws/making-by-laws
If you require further information please contact our information service on 1800 060 119 or http://www.qld.gov.au/bodycorporatequestion.
We have bought into an over 50’s lifestyle village, however the also new owners behind us smoke on their outdoor patio area , this drifts into our house through our bedroom windows and also into our outdoor area . I suffer terribly from sinusitis from this . What can we do ? I’m sure they are entitled to smoke on their property however there is no way to prevent it invading our home and outdoor area which is making it intolerable for me.