We recently received this question about an overcrowded apartment in NSW causing problems for a neighbouring lot owner. This issue involves both smoke drift and noise. Allison Benson, Kerin Benson Lawyers provides the following response.
Question: We have to put up with noise and smoke drift from an overcrowded apartment in our NSW apartment building. What can we do to stop this?
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I live in a house divided into apartments on strata title in NSW. One of the largest apartments was recently sold and turned into an illegal boarding house with many young people renting bedrooms on a long term basis.
In the common property courtyard, which is right below my bedroom, many people from the overcrowded apartment smoke and stay up late making noise. I have told the owner this. We have reported this illegal boarding house to the local council. They had no permission to do this. The council have been around to inspect the overcrowded apartment and are basically doing nothing.
What do I do about the smoking and late night action in the courtyard which is keeping me up at night? Do I myself put signs up in the courtyard – “No Smoking” – common property area? Do I tell the tenants from the over crowded apartment that they are not allowed in the courtyard after certain hours at night?
Answer: There are three issues here – smoke drift, noise and overcrowding / potential unauthorised use.
There are three issues here:
- smoke drift
- noise and
- overcrowding / potential unauthorised use.
There are several ways to tackle this which are:
- The Owners Corporation could pass a by-law prohibiting smoking on the common property. This would need the support of 75% of the lot owners present at the general meeting as a special resolution is required. Then anyone smoking in the common property courtyard would be in breach of the by-laws. The by-law could also authorise “no smoking” signs being put up in the foyer and around the courtyard as a deterrent. Then, if someone smokes on the common property the Owners Corporation can issue a notice to comply and if the breach occurs again take action for a civil penalty in NCAT.
Note that when the new Act comes into effect maximum penalties increase (from $550 to $1,100) and for repeat offenders (who have already been subject to a penalty in the previous 12 months) the maximum penalty increases again to $2,200. A no smoking by-law would be preferable however as there is no need to establish that the smoke drift is affecting the peaceful enjoyment.
- The Owners Corporation may consider that the smoke drift breaches model by-law 8 (assuming the model by-laws apply) and that the invitees behaviour interferes with the peaceful enjoyment of other occupiers and owners. The Owners Corporation could then issue a notice to comply for breach of this by-law and take the same path as described above. This assumes that it is an invitee not the actual occupier causing the problem.
- The Owners Corporation or lot owner could consider an action in NCAT against the lot owner and occupiers for nuisance under section 117 of the Act. They could seek orders that the occupiers are causing a nuisance to the lot owners above through their smoking (and also through the noise) and seek orders preventing them from smoking in the courtyard area or from making noise after certain times.
The idea that smoke drift is prohibited was something that many thought the new legislation would cover. The 2015 Act contains a similar provision to section 117 of the 1996 Act. It prohibits nuisance. It does not expressly state that smoke drift is a nuisance. A note to the section states that it may constitute a nuisance.
There are two ways to do this which are:
- The Owners Corporation could go down the path of issuing a notice to comply for breach of model by-laws 1 (noise) and 8 (behaviour of invitees – assuming it was an invitee rather than an occupier making the noise).
- The Owners Corporation, if the noise was considered to be a nuisance, may consider an action in NCAT against the lot owner and occupier under section 117 of the Act.
- Alternatively, the Owners Corporation may want to consider a by-law limiting the hours within which the courtyard area can be used by groups. This would prevent late night parties and reduce some of the noise issues.
The best solution for the Owners Corporation would be to have the local Council take an interest and enforce its development conditions (assuming the use of the lot for a boarding house is against the development consent and that a new DA would be required to approve it). It sounds like Council are not keen to do this.
If the owner conducted unauthorised renovations and changed the common property then the Owners Corporation should consider taking NCAT action for orders that the owner reinstate the common property to the way it was previously. The Owners Corporation may also want to consider what by-laws have been breached.
I would encourage the Owners Corporation to consider model by-laws 5 (damage to common property) and 19 (change in use of lot). The Owners Corporation should also check to see whether the use affects its insurance premiums.
For further information about these matters, please contact:
Legal Practitioner Director
Ph: (02) 4032 7990
This article covering issues due to an overcrowded apartment is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.