These Q&As about smoking in strata in Queensland has been supplied by Frank Higginson and Chris Irons, Hynes Legal.
Table of Contents:
- QUESTION: Smoke drift is driving me insane. Can the body corporate change the by-laws to put the onus on the smoker to ensure their smoke doesn’t cause a nuisance. Or would this bylaw be considered oppressive and unreasonable in QLD?
- QUESTION: We’ve installed synthetic turf in an area of common property. As this is only a small part of the shared common ground, can we make this a smoke free area?
- QUESTION: Our complex will not do anything about residents smoking on balconies. With the Coronavirus, smoking laws need changing urgently.
- QUESTION: A tenant’s smoke drift in our strata is going into common areas. He has been served a Form 11. How do we either make this stop or evict the smoker?
Question: Smoke drift is driving me insane. Can the body corporate change the by-laws to put the onus on the smoker to ensure their smoke doesn’t cause a nuisance. Or would this bylaw be considered oppressive and unreasonable in QLD?
Smoke drift issue is driving me insane. I have a toddler and baby whose young lungs I want to protect but our upstairs neighbour always smokes, and the smoke always drifts onto our balcony.
I’ve asked the body corporate to change the by-laws to put the onus on the smoker to ensure their smoke doesn’t cause a nuisance, even when they smoke in the ‘privacy’ of their own balcony. This is a law that has been adopted in New South Wales, which I thought was a great solution because it doesn’t actually ban smoking, it just forces smokers to be more conscious of people around them. My body corporate is hiding behind the strict letter of QLD law, saying they can’t (or won’t) include such a by-law.
Or could a bylaw such as this be considered oppressive or unreasonable? Would it pass the test if it were ever to be challenged?
As an aside, I find it astounding that the QLD government has numerous laws in place to protect children from exposure to cigarette smoke when they are at school/daycare, at a playground or sporting event – they are even protected on car journeys, which is interesting as it is not a public space – yet there is this gaping lack of protection the minute the children arrive home. This borders on negligence in my view – after all, where do children spend the bulk of their time outside of school? Hello, home!
Answer: I’m not sure your proposed by-law would be oppressive or not but it does seem possibly unenforceable.
I’m not sure your proposed by-law would be oppressive or not but it does seem possibly unenforceable – how is someone going to control the flow of smoke from their balcony? Should it be enclosed? Fans installed? A vent? What if those options are either really expensive or not practical?
I’m not disagreeing with your wish to be smoke-free. I’m just saying that you’d need to consider all of the above, and more because these would be the responses of the smoker in question and would likely be considered by an adjudicator if there was a challenge.
You can request a motion be placed on the agenda of your next general meeting seeking the by-law you want, but if you did do that then I’d urge you to keep the above points in mind and have answers ready, otherwise, your motion is likely to fail, or not even get considered.
This post appears in Strata News #426.
Question: We’ve installed synthetic turf in an area of common property. As this is only a small part of the shared common ground, can we make this a smoke free area?
We’ve installed synthetic turf in some of the common property. The installers have recommended no smoking near it to prevent burn holes from live ash and butts.
Can we put in a motion at the AGM to make this a smoke free area based on the fact that it’s only a small part of the shared common ground?
As a bylaw cannot be too oppressive or unreasonable I would think that a small area of the common area that has smoking restrictions due to the installation of synthetic turf would fall into the reasonable category.
If we were able to have such a bylaw would we put in a motion at the AGM / special resolution for a new bylaw?
Answer: A by-law prohibiting smoking on common property may be open to challenge.
Limitations on what by-laws can do are provided for in section 180 of the Body Corporate and Community Management Act 1997 (BCCM Act). As you’ve correctly pointed out a by-law must not be oppressive or unreasonable (section 180(7) of the BCCM Act). One of the ways in which a by-law might be oppressive or unreasonable is when it is framed as a prohibition. By-laws are meant to regulate, not outright prohibit.
Regarding smoking, there’s some fairly well-established case law about smoking in bodies corporate. A by-law prohibiting smoking on common property may be open to challenge. Your email talks about both a ‘smoke-free’ by-law and some restrictions about smoking on the common property. I’d say these are 2 separate things. If you’re intending to submit a motion about a new or revised by-law, you need to get that distinction clear.
By-laws need to pass by special resolution (section 62 of the BCCM Act) at a general meeting.
It will ultimately be an adjudicator in my former Office that makes the determination about whether a by-law is unreasonable or oppressive and they will consider things on a case by case basis. It’s up to the body corporate in your scheme to act reasonably and if ever a by-law about the synthetic turf were to be challenged, it would be up to the body corporate to demonstrate why the decision about the by-law was reasonable in the circumstances.
Before all of that, though, there might be some practical and informal steps. If it hasn’t already happened, could there be communication to all owners and occupiers about the turf? You can’t assume everyone knows about its installation and what might happen if there are ash and butts. Perhaps you can provide to all owners and occupiers a copy of the installers’ advice to really illustrate your point. You might like to think about doing that informally first in a circular or newsletter, or with a notice near the turf, before (or even rather than) opting directly for a by-law. It would be cheaper and less time-consuming.
I’m with Hynes Legal in a non-legal capacity to provide a pragmatic perspective to and solutions on body corporate issues. This query is a great example of a situation that has some dedicated legal avenues but which also has a range of other, non-legal possibilities which might also resolve the matter and do so in a more harmonious and effective way. Feel free to discuss these sorts of things with me.
This post appears in Strata News #397.
Question: Our complex will not do anything about residents smoking on balconies. With the Coronavirus, smoking laws need changing urgently.
Our complex will not do anything about residents smoking on balconies. We have to shut our doors and windows as smoke drift is coming into our unit all day long.
Surely at least in times of Coronavirus with responsible people staying home all day, Body corporates or Unit Managers should at least put a stop to this health risk to all residents.
We all should be able to breathe without constant cigarette smoke coming in. Nothing is being done in this complex. With the Coronavirus, smoking laws need changing urgently.
Answer: The body corporate is able to regulate activity on common property. When it comes to someone’s lot though, they don’t have that same power.
The government has said and done many things in relation to COVID-19 and has issued many orders as well. One order they haven’t made, to the best of my knowledge, is to outlaw smoking.
While we may have strong objections to smoking, the fact remains it is legal to smoke in Queensland. So it is also legal to smoke in a body corporate, albeit with some possible restrictions. For example, when it comes to use of common property.
The body corporate is able to regulate activity on common property. When it comes to someone’s lot though, they don’t have that same power. Additionally, it isn’t the role of onsite managers, body corporate managers or caretakers to regulate people’s behaviour – that’s the role of the body corporate, to enforce through by-laws.
In relation to smoking, there is scope for you to pursue by-law breaches and also nuisance breaches either as an individual or through your committee, and there is also nothing stopping you discussing with your committee your concerns, as well as putting up motions to general meetings if that’s what you’d prefer.
If you want laws changed, then that’s a matter for you to take up with your elected representatives.
This post appears in Strata News #333.
Question: A tenant’s smoke drift in our strata is going into common areas. He has been served a Form 11. How do we either make this stop or evict the smoker?
A tenant’s smoke drift in our strata is going into common areas and there have been verbal complaints and complaints sent to the Real Estate Property Manager. The Property Manager said the tenant is in breach of his rental agreement because it states no smoking in the unit or in the closed-in balcony area of the lot.
The tenant has been given a form 11 but still continues to smoke. We are aware we should be compiling evidence and lot owners now have a record which will hopefully help to evict the tenant if this continues.
How can this be done? It’s the tenant’s word against all other residents. Politely asking him to cease hasn’t worked and has made things uncomfortable for those who have asked, either politely in person or through the property manager. Other occupiers now don’t want to put a complaint in writing or come forward because of retaliation.
Answer: There is a cross here between a tenancy issue and the body corporate issues.
There is a cross here between a tenancy issue and the body corporate issues.
Any breaches of the rental agreement are a matter between the owner of the lot and the tenant where the property manager, acting as agent for the owner, would be the middle person. This means the property manager should only be acting on the owner’s instructions in relation to any rental agreement breaches.
As a completely separate issue is whether there are any by-law breaches which is a matter for the body corporate to enforce against the tenant and would explain the form 11. The committee would need further evidence of the smoking in strata to enforce the by-laws but the committee wouldn’t be in a position to enforce the rental agreement.
This post appears in Strata News #251.
Have a question about smoking in strata in Queensland or something to add to the article? Leave a comment below.
- QLD: The golden rules of by-law enforcement
- NAT: Coronavirus & Strata – What Does the Legislation Say? Not Much!
- By-laws regulating smoking in Queensland community title schemes
Looking for strata information concerning your state? For state-specific strata information, take a look here.