Smoking in apartment buildings can be a very contentious issue and cause disputes with neighbours, whether they are owner occupiers or tenants.
Can the Body Corporate create a by-law to ban smoking in the building complex?
Short answer… no.
A by-law in QLD community titles schemes cannot ban smoking completely, however a by-law can regulate, but cannot prohibit an activity.
- Section 169 Body Corporate and Community Management Act 1997 (Qld).
- Body Corporate for River City Apartments CTS 31622 v McGarvey [2012] QCATA 47
No ruling from an Adjudicator in QLD has supported the restriction of smoking within a lot by a body corporate.
Section 180(3) of the Body Corporate and Community Management Act provides that “if a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use”.
So, while the idea of cigarette smoking may be distasteful to some, it would not generally be possible for a body corporate to prohibit, or even restrict, smoking, in a lot.
What does this mean & what can we do?
Communication is the first point of call…
This should be done in a calm + courteous way (even if you aren’t happy), as the person has;
- not done anything illegal
- may not be aware that it is bothering anyone
- is not against any by-law (unless can be classified as nuisance)
What by-law can we implement?
The Body Corporate can regulate activity on common property with a by-law.
Remember that a by-law can regulate but cannot prohibit an activity…
So, a by-law completely prohibiting smoking on common property may be open to challenge.
In QLD, it may be possible to restrict smoking on common property through a by-law if it can be proven that the smoke causes a nuisance, hazard or interferes with the use or enjoyment of another lot included in the scheme, or common property.
Smoking nuisance by-law
A Body Corporate can pass a smoking nuisance by-law in terms that are consistent with the general nuisance provision of the Body Corporate and Community Management Act.
For example;
The occupier of a lot included in a community titles scheme must not smoke a tobacco product, or permit the smoking of a tobacco product, on the lot or the common property in a way that;
- causes a nuisance or hazard
- interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
- interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
Signage…
The Body Corporate can also put-up signs and notices restricting smoking in common areas, or to designate other areas of common property where smoking may be permitted.
Signage cannot simply replace a by-law and that any enforceable rules must be included in the Scheme’s registered by-laws.
Enforcing a by-law…
If the scheme has a bylaw regulating smoking, an occupier or owner can formally ask the body corporate to enforce the bylaw.
If the body corporate does not advise the owner or occupier within 14 days that they have issued a contravention notice, they may take the matter to the Body Corporate and Community Management Office.
This will not prohibit smoking, but residents may understand that their smoking maybe a nuisance and creates awareness that their smoking affects their neighbour.
Besides following the general nuisance provision of the Body Corporate and Community Management Act or re-stating the relevant sections of the Tobacco and Other Smoking Products Act, a by-law regulating smoking is unlikely to withstand challenge.
What constitutes a “nuisance”
The legal concept of “nuisance” when it relates to second-hand smoke is not clear cut…
In one QLD case (Norbury v Hogan [2010] QCATA 27), a man wanted to stop smoke infiltrating his bedroom from his neighbour’s balcony.
Nuisance could only be established if the smoke was of such volume or frequency that it was an unreasonable interference.
Although the tribunal accepted that smoke often entered his bedroom, he was found to have an “abnormal sensitivity” and thus was subjectively affected by the smoke-drift.
Tenants
Via a property manager, investment owners can specify that a tenant cannot smoke in their apartment. Most property management companies ban smoking in the apartments they manage.
However, this is not a body corporate issue.
If a tenant does smoke, they will be breaching their rental agreement not one the body corporate’s by-laws and then subject to the property manager issuing them a notice of breach.
Summary
Similar to our article on Parking in Visitors spots….
Smoking (& visitors parking) is a contentious issue, that can cause disputes.
Unfortunately, residents + body corporate though, do not hold much power to stop it.
Again…communication is the best way to discuss with the residents involved.
Contact us for any questions &/or Property Management!