Question: Can I stop my neighbour from smoking on his balcony all day? The smoke drifts straight into my unit. Does SA have any laws for smoking in units?
I was under the impression that living in a Strata unit, you need to be courteous to your neighbours and not being disruptive. I have lived in my unit for the past 24 years. My neighbour moved in about 7 years ago.
I believe SA is the only state not to observe no smoking in enclosed areas for units.
My neighbour sits approximately 3 metres from my back door and smokes on the hour every day. For the past 7 years I have not been able to sit in my backyard or have my bedroom, kitchen windows or back door open as the smoke and smell comes straight in.
I have very politely asked if they could smoke around the other side but no response. I’ve asked our Strata Manager but was told there’s nothing I can do.
Is there anything I can do?
Answer: There is currently a bill in parliament to amend the Strata and Community Titles Act and this Bill is currently proposing that the Articles / Bylaws be amended to automatically include a statement that owners must not allow smoke to drift onto common property or another lot.
This is a very difficult situation, as you are correct. South Australia does not have any rules or Acts in relation to smoking on private property and it causing offence to those in neighbouring properties.
Schedule 3 of the Strata Titles Act states that you must not interfere with others in the enjoyment of their rights in relation to units or common property, however this is a very difficult situation to challenge. I have had owners who are smokers advising that being told that they cannot smoke in their unit subsidy is interfering with their enjoyment.
While you would need to seek your own legal advice, at a seminar ran by the Strata Community Association (SA) a lawyer advised that in order to prevent someone smoking on their own property you would need to argue that it was a nuisance and from my understanding this is not a simply law to argue.
There is currently a bill in parliament to amend the Strata and Community Titles Act and this Bill is currently proposing that the Articles / Bylaws be amended to automatically include a statement that owners must not allow smoke to drift onto common property or another lot.
This post appears in Strata News #502.
Carrie McInerney Horner Management E: carrie@hornermanagement.com.au P: 08 8234 5777