What can an owner do if neighbours' cigarette smoke drifts into their lot, but the body corporate refuses to act because it has not updated its by-laws?
My neighbours smoke cigarettes. The carcinogenic smoke drifts into my backyard and into my home. I emailed the body corporate, but they refused to act. They said that although legislation now confirms smoking is a nuisance and allows bodies corporate to register by-laws prohibiting smoking on common property and outdoor areas of lots, our scheme has not reviewed or registered new by-laws. They advised that this means they cannot issue a notice of by-law breach to the occupants for smoking in their exclusive use yard. Is this correct?
If there are existing by-laws that regulate causing nuisances or hazards, the lot owner can ask that the committee enforce these by-laws.
Even though the new legislation allows by-laws to prohibit smoking in certain areas, the committee is still obliged to enforce the current by-laws. In some instances, there will be existing by-laws that regulate nuisances or hazards being caused – which smoke drift will contravene. If this is the case, the lot owner can ask that the committee enforce these by-laws by issuing a form 1.
Alternatively, direct action against the smoker can be taken:
- pursuant to section 167 of the Body Corporate and Community Management Act 1997 (Qld); or
- under the by-laws after a form 1 is issued and the committee chooses not to take further action.
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Todd is an experienced property lawyer who heads up Mahoneys body corporate team.
Todd specialises in body corporate law and predominantly acts for bodies corporate, body corporate managers and lot owners on all matters affecting bodies corporate.
Todd is an active member of the Strata Community Association (Qld). In 2019 he was appointed to the Strata Community Association (Qld) legislation committee and assists in making submissions on behalf of the Strata Community Association (Qld) on issues such as legislative reform in body corporate law.
As Todd is also a body corporate committee member, he understands the day to day requirements of administering a body corporate.
Todd has a focus on achieving practical and commercial results for his clients and understands the market in which bodies corporate operate within.
Todd also provides body corporate managers, and other industry stakeholders, with presentations and training on matters affecting the body corporate industry.
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