This article is about whether an owner can raise a grievance about smoke drift from neighbouring lots before the owners corporation formally adopts the new smoking by-laws.
Question: Can an apartment owner in Victoria raise a grievance about smoke drift from neighbouring lots before the owners corporation formally adopts the new smoking by-laws?
I own an apartment and am experiencing smoke drift from my neighbours. I have a health condition that puts me at high risk for a stroke, and the smoke is a genuine hazard to my health.
With the new rules regarding smoking not impinging on neighbouring lots, can I submit a grievance form to the owners corporation (OC), or must the OC include this rule in the by-laws before I can submit my complaint?
Answer: A new model rule updated from December 1 2021, automatically applies to all residents of your OC and can be enforced.
The model rules were updated from December 1, 2021, to include:
- 1.4 Smoke penetration
A lot owner or occupier in a multi-level development must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
From this date, this rule applies to all owners corporations and supersedes any older rules which may be registered with your plan of subdivision.
In other words, this rule automatically applies to all residents of your OC and can be enforced.
When you submit a formal complaint, your grievance committee (or the committee of management if there is no grievance committee) will consider the information provided and then advise you of its decision and the next steps.
The committee is required to follow the dispute resolution process outlined in your rules before acting, which may involve you attending a grievance meeting.
Oftentimes, a casual conversation with your neighbour may provide a more effective and timely resolution: your neighbour may be unaware of the smoke drift and its impact on you and be willing to alter their behaviour once aware.
You could consider placing a letter in their mailbox, striking up a conversation in the hall (if possible), or asking your owners corporation manager or committee to alert them of the impact of their behaviour, before submitting a formal complaint.
Where a clear, intentional breach of model rule 1.4 becomes apparent, however, you are well within your rights to lodge a formal complaint if it cannot be resolved any other way.
Please remember to record the times and dates when you smell the smoke to formulate a logbook. This will help all parties understand how often the issue is occurring and may also be used as evidence at VCAT, should the matter be unresolved at an owners corporation level.
The Knight
Email
P: 03 9509 3144
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Read next:
- VIC: Rule or Be Ruled: Why Your OC Rules Need a Refresh
- VIC: Expert Panel To Review Owners Corporation Laws
- VIC: Owners Corporations Case law update- Benefit Principle
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