This article discusses body corporate common property smoking, examining the risks and consequences for bodies corporate that continue to allow smoking on common property after 1 May 2024.
Question: With the new smoking laws from 01 May 2024, would a body corporate be liable if they continued to allow smoking on common property?
Answer: Bodies corporate that do not have a valid by-law prohibiting smoking will expose themselves to a lot of criticism, complaints and disputes from owners and occupiers concerned about smoke.
From 1 May, the BCCMA will be amended to provide that a by-law prohibiting smoking on common property will not be oppressive or unreasonable. Flipping that around, that means from 1 May, the body corporate can have a valid by-law prohibiting smoking. The mechanics of achieving that will, for some (many?) bodies corporate, mean they will need to amend their by-laws.
So, then, for bodies corporate that do not proceed down that path and instead opt to do nothing to regulate or prohibit smoking or do nothing to address owner or occupier concerns about smoking, where does that leave them? I think that is where your query about ‘liability’ kicks in. I am not a lawyer, and I do not have insurance-related expertise, so I cannot comment on ‘liability’ in either of those very specific contexts. If we talk about risks and practical impacts for bodies corporate though, I certainly have the expertise to speak on those points. The risk is that from 1 May, bodies corporate that do not have by-laws reflecting the above will expose themselves to a lot of criticism, complaints and disputes from owners and occupiers concerned about smoke. All of which will involve time, money and stress. There may be implications for property values: a body corporate that does not act on smoking concerns may not be an attractive prospect for someone wanting to buy a lot.
And then, of course, the biggest risk of all – the health impacts of second-hand smoke. Let us not forget that one of the main instigators of these new strata smoking laws is this adjudicator’s decision, in which second-hand smoke was found to be a hazard. Does the body corporate want to be ‘liable’ for a potentially life-threatening hazard on common property?
I think we all know the answer to that.
This is general information only and not legal advice.
Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898