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August 09 Edition Cover

Owners’ Corporation Law - February 2014

11 Feb 2014

Stoking the embers of a smoking debate

Smoking cigarettes in common property areas and on the balconies of units is a hotly-contested issue that divides any residential building.

The overwhelming medical evidence today concludes that not only is smoking severely injurious to personal health, but also “smoke drift” or passive smoking can sometimes be just as injurious to health as it is to the person inhaling the cigarette themselves.

Residents shouldn’t have to put up with smoke drift and cigarette butts coming from other balconies in their buildings. If the odour and smoke is offensive, then it can be declared to be a nuisance, and can be banned via an order from the Victorian Civil and Administrative Tribunal (VCAT).

The key to remember here is that the activity complained about must be objectively unreasonable, not subjectively unreasonable, meaning that an ordinary person would need to find the smoking to constitute a nuisance.

Similarly, if the problem is spread throughout a building and on many levels, then an owners corporation may pass an additional rule to restrict smoking on common property, and to restrict smoking on balconies where that may cause nuisance to other residents. The additional rule would need to be passed by a special resolution at a general meeting of the owners corporation. Even if the special resolution does not pass, a lot owner or group of residents may appeal the decision to VCAT to have the rule passed and registered in any event.

On a policy front, the smoking of cigarettes shall continue to be marginalised by lawmakers in the years to come, to the extent where smoking cigarettes may even be banned in apartment buildings altogether.

It is only a matter of time until new developments will have compulsory rules registered to ban smoking in all areas of the building. But will Victoria be the first state in Australia to pass laws to essentially make new buildings “smoke-free”?  I would think so.

Tom Bacon is the principal lawyer of Strata Title Lawyers.  
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