28 Feb Is cigarette smoke a problem?
Smoke can be a nuisance if it is drifts from a lot to another lot or common property.
There is no general prohibition on smoking and it remains a legal activity. Governments have enacted controls including prohibitions on smoking to improve health and limit the effect of secondhand smoke. Smoking is generally banned in workplaces childcare centres, kindergartens, schools, public hospitals, community health centres, police stations, courts government buildings. There are also bans regarding smoking in motor vehicles carrying children and outdoor recreational areas where children play such as skate parks, pools and sporting venues if under-18 events are being conducted. These bans include traditional and e-cigarettes (vaping).
What rules are there regarding smoking?
There are two relevant Model Rules applicable to smoking.
Model Rule 1.1:
A lot owner or occupier must not use the lot, or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier, or user of another lot.
Model Rule 1.4 refers particularly to smoke drift and is:
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.
Rule 1.4 operates for multilevel buildings, one lot above another such as an apartment building and does not apply to townhouse or villa developments. Rule 1.1 applies to all owners corporations.
Is smoking on common property permitted?
As an owners corporation has control of common property, it may prohibit smoking on common property.
It is smoking within a lot prohibited?
There is no prohibition on a person smoking tobacco or other substances with in a lot. If smoke escapes from a lot to another lot or common property it is a breach of the above rules.
What action can be taken?
It is recommended that if you are affected by smoke drift, approach the person causing it and make your concerns known. It may be that the smoker is unaware of the effect and may take steps to eliminate the smoke drift.
If the smoking continues and is causing a nuisance, an owners corporation may take action by serving a breach notice on the offending party. This requires the person or persons causing the escape of smoke cease allowing it. This may result in the person having to smoke outside of the property such as on a street or other area where smoking is not prohibited.
If the person does not comply with the breach notice to cease smoking, this may ultimately require an application to the Victorian Civil and Administrative Tribunal for resolution of an owners corporation dispute. It is then a matter for the Tribunal to determine the appropriate remedy.
Can an owner exercise control over smoking within a lot?
It is always open to an owner of a lot to impose a condition in the lease or tenancy agreement which prohibits smoking within the leased property. Some reasons for this include:
- reducing the potential for an accidental fire arising from an unextinguished cigarette;
- reduced time and cost for cleaning on termination of a tenancy;
- ability to offer the property as non-smoking;
- lessening of the possibility of disputes arising from smoke drift from the lot.
If the complaint is smoking by tenant, the manager will draw this to the attention of the owner as the owner has particular controls over his or her property and may take action considered appropriate.