This article about Smoking in Strata Schemes post reforms has been supplied and written by Allison Benson, Kerin Benson Lawyers.
The NSW strata reforms are almost complete with draft regulations being released for comment. This has re-ignited interest in strata and we have received a number of calls and emails from strata occupants excited about the smoke free by-laws that will take effect. I’ve also spoken to some lot owners who have told me that smoking will soon be prohibited under the Strata Schemes Management Act 2015 (NSW) (the 2015 Act). As much as I would like these statements to be true, they aren’t quite accurate for the reasons given below.
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The Model By-Laws
Unlike the current model by-laws the proposed model by-laws will deal with smoking by owners, occupiers and invitees which is a good step forward. Proposed model by-law 9 provides for three options which are:
- Smoking in a lot is permitted but there must be no smoke penetration into any other lot or the common property.
- Smoking in a lot is permitted but there must be no smoke penetration into any other lot or the common property. Smoking on the common property is also permitted but only in either designated smoking areas or with the written permission of the owners corporation.
- Smoking in a lot is permitted but there must be no smoke penetration into any other lot or the common property. Smoking on common property is expressly prohibited.
First issue: No option completely bans smoking within the scheme. The aim of the three options is to regulate smoking and prevent smoke drifting from one lot into another lot or the common property.
Previously, the only model by-law that could be used to regulate smoking was model by-law 8 in the 2010 Regulations which states that:
8 Behaviour of invitees
An owner or occupier of a lot must take all reasonable steps to ensure that invitees of the owner or occupier do not behave in a manner likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or any person lawfully using common property.
Second issue: What many lot owners do not know is that any new model by-laws will generally not apply to existing schemes. The new model by-laws will only apply to strata schemes registered after the commencement of the 2015 Act if the developer choose the model by-laws. Even then the developer will select which option is to apply.
If an existing owners corporation, that is a strata scheme registered before the 2015 Act commences, wants to introduce one (or all) of the new model by-laws then it will have to pass a special resolution at its general meeting repealing the current by-law(s) and adopting the new model by-law(s). My suggestion is that if the owners corporation wants to regulate smoking that it consider a by-law tailored to its scheme.
Note that the regulations and proposed model by-laws are only in draft form and may change however the applicability of the proposed new model by-laws will not change.
Read Part 2 of this article: NSW Strata Reforms: Smoking in Strata Schemes – Nuisance & Smoke Drift
Legal Practitioner Director
Ph: (02) 4032 7990
Please note: This is not legal advice. You should seek legal advice particular to your situation.
The photo associated with this post has been supplied by Flickr: Anastasia Massone – smoke.
Are you interested in more information about Smoking in Strata Schemes or information particular to strata legislation in NSW? Visit our FactSheet: Strata Smoking OR FactSheets: Strata Legislation NSW pages.