If we wished to mount a successful case of nuisance against a persistent smoker at our complex, would it be advisable to obtain expert evidence re the dangers of smoke drift.
Our By-Laws were recently updated for us by a strata lawyer, and they provide that an owner or occupier must not smoke, or permit a visitor to smoke, in their lot if it unreasonably interferes with the use or enjoyment of another person in a lot or common property.
We understand in Queensland, the Adjudicators have consistently refused to order an owner/occupier to ‘cease and desist’ smoking in their own lots, even on their balconies, because the complainants had failed to prove their case, ie unlawful nuisance.
If we wished to mount a successful case of nuisance against a persistent smoker at our complex, would it be advisable to obtain expert evidence re the dangers of smoke drift in general and in the particular circumstances of each case?
It is difficult to get a successful outcome from an adjudicator regarding smoking
Short answer? Yes.
Longer answer? As you’ve correctly noted, it is difficult to get a successful outcome from an adjudicator regarding smoking. This is essentially because the test for nuisance (as provided for in section 167 of the Body Corporate and Community Management Act 1997) has been established in the Courts and it is a high threshold. Without going into the gory details, it’s not enough to simply say ‘that person is smoking, they’re causing a nuisance’. Legal advice could assist the body corporate in make its necessary case against the smoker.
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Chris is a strata unicorn: he is not a strata lawyer, manager or caretaker. He was Queensland’s Commissioner for Body Corporate and Community Management for over 5 years. That is the only role of its type in the world. Chris is also an owner in one strata scheme, and a tenant in another.
As Director of Strata Solve, Chris focuses on communications and strategic advice, rather than legal action, to solving strata problems. Strata Solve works with owners, committees, strata managers and caretakers to tailor practical solutions to stressful strata situations. Chris holds an Honours degree in Communications and is a nationally accredited mediator.
Chris is a regular contributor to LookUpStrata.
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