We recently received a request for information concerning no smoking strata bylaws from a NSW lot owner. We thank Allison Benson, Kerin Benson Lawyers for providing a response.
Question: Can new no smoking strata bylaws be applied to long term residents?
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Our Body Corporate has just banned smoking on balconies. I’m wondering if these no smoking bylaws can be applied to an owner/resident who purchased an apartment six years ago. Some owners have been here for years.
Is the legislation retrospective? Some owners have had sales fall through after buyers heard of this law.
Will the new strata changes have any impact on these new bylaws?
Answer: If a new by-law is passed by way of a special resolution then once it is registered it is enforceable.
You can indeed introduce by-laws into older buildings. A by-law is binding on the owners corporation, lot owners and occupiers as if it were an agreement under seal. This means that regardless of when you buy into the scheme, if a new by-law is passed by way of a special resolution then once it is registered it is enforceable.
The by-law itself should not be drafted in a way to make it retrospective however this does not stop it from being effective as it regulates behaviour after the by-law is registered. This means that smoking on a balcony before the by-law was passed was permitted as long as it did not cause a nuisance and breach section 153 of the Strata Schemes Management Act 2015. However, smoking on a balcony after the by-law is passed is prohibited and the by-law can be enforced once it is registered.
The new model by-laws at schedule 3 in the draft Strata Scheme Management Regulations that were released for public consultation on Friday 29 April have three options that a developer may elect when registering a strata scheme.
All three options allow smoking within a lot provided that the smoke does not penetrate to the common property or to any other lot. The model by-laws will only apply however to new schemes registered after the Strata Schemes Management Act 2015 commences, or if an existing scheme specially resolves to adopt part or all of the new model by-laws.
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Are you interested in more about no smoking strata bylaws or information particular to NSW legislation? Visit our FactSheet: Strata Smoking, FactSheet: Strata Law Reform OR FactSheet: Strata Legislation NSW