This question about smoke drift from a neighbour smoking on their apartment balcony in WA has been answered by Strata Martyr.
Question: The new neighbours smoke on the apartment balcony below us and are causing smoke drift into our unit. We are unable to open our windows or use our balcony. What can we do?
My wife and I live in a small apartment block in Western Australia. The apartment directly below us has been vacant up until around a year ago when it was sold, and new owners moved in.
One of the owners is a very heavy smoker, and this is now impacting severely on our lifestyle as we are unable to sit on either of our balconies (river or street) because of the smoke drift coming from their balconies.
In addition, my husband who spends up to 5 hours a day in our study is now unable to have the bi-fold office doors open, as they open onto the street side balcony. If the bi-fold doors are open while the neighbour smoking on the apartment balcony, the smoke drifts into our office and all the way down to our kitchen.
I would appreciate some advice on where we stand on this issue and the correct process for approaching this delicate subject with the owners.
Answer: If you do not wish to move, start campaigning for a no smoking bylaw.
Smoking is a difficult problem to curtail on many levels. ACOSH (Australian Council on Smoking and Health) have been endeavouring to find a solution to drift smoke in Strata complexes.
It is felt that a law needs to be introduced, the problem would be the pre-existing owners who smoke that their right would be impinged if the property they lawfully own now has a new restriction on it and they are not in agreement.
An argument could be made that when owners purchased into the complex there was no such restriction and to introduce them now with anything less than unanimous would be problematic.
In the planning stages of a new development it is possible to tailor make a set of by-laws to suit the strata complex theme and needs, i.e. Over 55s only or a no pets by-law.
One would imagine a pet owner knowing this by-law existed would not buy into that complex. The logic would be if a Strata Complex had a set of anti-smoking by-laws those people purchasing in were not smokers.
The Smoky area
An owner who purchases to rent the unit out may restrict his rent ability by having a no smoking by-law. This may also have the effect of investors not purchasing in the building due to the restrictions on smoking in the apartment and on the balcony.
Another view would be a new strata complex with no smoking, is attractive to owner occupiers who may pay a premium as a result.
I recently took management of a complex that had the following Schedule 2 by-law.
(1) No proprietor or occupier shall smoke, or permit any invitee to smoke, on or within common property.
(2) No proprietor or occupier shall smoke, or permit any invitee to smoke, on or within his lot, in such manner as may cause a nuisance or annoyance to proprietors or occupiers of other lots, including, but not limited to:
(a) discarding butts onto common property or into any other lot; or
(b) permitting emissions to pass into any other lot including, but not limited to, through any air-conditioning system, window or vent. Strata By-Laws
The Smoking Gun
Schedule 1 By-Laws are stronger by-laws than Schedule 2. Schedule 1 requires a “Resolution Without Dissent” (no one can vote no.) to become the law of the Complex.
Schedule 2 By-laws become law if less than 25% vote against.
Any owner has the right to contest a by-law if they feel they are being unfairly dealt with, in the absence of that, it is the Law and the Strata Company is charged with the responsibility of enforcing the by-laws.
At this point, it can become messy and lawyers engaged if they were not already. If an occupant has been notified that a complaint about alleged smoke drifted from their apartment has been received and they accept this and promise not to do again, this is a good result. If they deny it, where does the Strata Company go from there? Enforcing by-laws is never as simple as it sounds. Spare a thought for those who do not like the strong cooking smells but endure them drifting and permeating the hallways each evening.
Recently a strata complex in Scarborough introduced a Sch. 2. by-law which indicated drift smoke was not allowed or smoking on common property but inside their lot was, as long as it did not disturb the peaceful enjoyment of others.
If you love your apartment and do not wish to move, start campaigning for a no smoking bylaw. You may need to allow smoke inside of the lot like the Scarborough complex in case an owner is a smoker. Make an agreement with the owner that if they sell or give up smoking, the bylaw will be further amended to now state no smoking anywhere. All this will take longer than you think and it will cost the strata company money. Every potential unit that is rented out could see a smoker move in.
Adopt a long-term plan to eradicate smoke with concessions for those still addicted to reach 100% smoke free.
This post appears in Strata News #170.
Have a question about smoking on an apartment balcony in WA or something to add to the article? Leave a comment below.
Note: Legalities are sorted by Lawyers consequently this response to a question posed is my general opinion only and suitable specialists in these areas should be sort for clarification on all points.
Please note this advice was provided prior to the proclamation of the new strata title amendments and will be updated in due course.
- WA: Apartment owners put clamp on smokers
- SCA WA Policy: Smoking in Strata Schemes
- WA: Q&A Access Problems with Neighbour via Shared Gate
- WA: How Will the New Strata Titles Legislation Affect our Council of Owners?
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