SA lot owners are wondering what can be done about smoking on the balcony. Josh Smith and Flavia Ger from Ace Body Corporate Management have provided the following responses.
Jump directly to the QUESTION you are after:
- QUESTION: Can I stop my neighbour from smoking on his balcony all day? The smoke drifts straight into my unit. Does SA have any laws for smoking in units?
- QUESTION: Have any strata corporations in SA banned smoking on the balcony? If not, are you aware of any by-laws that specifically mention smoke drift in its bylaws?
- QUESTION: I am unable to have my door open or sit outside due to smoke drift from my neighbour smoking on the balcony. What rights do I have to stop this?
Question: Can I stop my neighbour from smoking on his balcony all day? The smoke drifts straight into my unit. Does SA have any laws for smoking in units?
I was under the impression that living in a Strata unit, you need to be courteous to your neighbours and not being disruptive. I have lived in my unit for the past 24 years. My neighbour moved in about 7 years ago.
I believe SA is the only state not to observe no smoking in enclosed areas for units.
My neighbour sits approximately 3 metres from my back door and smokes on the hour every day. For the past 7 years I have not been able to sit in my backyard or have my bedroom, kitchen windows or back door open as the smoke and smell comes straight in.
I have very politely asked if they could smoke around the other side but no response. I’ve asked our Strata Manager but was told there’s nothing I can do.
Is there anything I can do?
Answer: There is currently a bill in parliament to amend the Strata and Community Titles Act and this Bill is currently proposing that the Articles / Bylaws be amended to automatically include a statement that owners must not allow smoke to drift onto common property or another lot.
This is a very difficult situation, as you are correct. South Australia does not have any rules or Acts in relation to smoking on private property and it causing offence to those in neighbouring properties.
Schedule 3 of the Strata Titles Act states that you must not interfere with others in the enjoyment of their rights in relation to units or common property, however this is a very difficult situation to challenge. I have had owners who are smokers advising that being told that they cannot smoke in their unit subsidy is interfering with their enjoyment.
While you would need to seek your own legal advice, at a seminar ran by the Strata Community Association (SA) a lawyer advised that in order to prevent someone smoking on their own property you would need to argue that it was a nuisance and from my understanding this is not a simply law to argue.
There is currently a bill in parliament to amend the Strata and Community Titles Act and this Bill is currently proposing that the Articles / Bylaws be amended to automatically include a statement that owners must not allow smoke to drift onto common property or another lot.
Carrie McInerney Horner Management E: carrie@hornermanagement.com.au P: 08 8234 5777
This post appears in Strata News #502.
Question: Have any strata corporations in SA banned smoking on the balcony? If not, are you aware of any by-laws that specifically mention smoke drift in its bylaws?
Have any strata corporations in SA banned smoking on the balcony? If not, are you aware of any by-laws that specifically mention smoke drift in its bylaws?
Our corporation is currently reviewing the by-laws for our apartments. I am looking for ideas on how to word a smoking or smoke drift by-law.
Answer: If you wish to formalise a by-law, you can put a motion on the agenda to review/ amend the by-laws of your corporation on smoking and nuisance.
Since you mention By-laws, I am assuming that your corporation is governed by the Community Titles Act 1996 (CTA) in South Australia. Corporations governed by the Strata Titles Act do not have by-laws but are regulated by the Articles of the Strata Corporation.
Many Eastern states have updated their Strata legislation in regards to smoke drift, however, there is nothing in the Community Titles Act 1996 (CTA) in South Australia that allows the corporation to ban smoking within units/ smoke drift or balconies. The corporation can, however, make By-Laws and resolutions to prohibit smoking on common property as this can be seen as a nuisance if reasonable steps are not taken to alleviate the impact on other residents.
Under the CTA, Part 12—Obligations of owners and occupiers, section 133 on Nuisance states –
An owner or occupier of a lot must not use, or permit the use of, the lot or the common property in a way that—
- causes a nuisance; or
- interferes unreasonably with the use or enjoyment of another lot or the common property by another person who is lawfully on the lot or common property.
In view of the above, the law regarding nuisance may be used to prohibit smoking in designated common property areas and exposure to second-hand smoke. If you wish to formalise this into a by-law, you can put a motion on the agenda to review/ amend the by-laws of your corporation on smoking and nuisance.
If the balcony is the common property of the corporation and shared by all residents, the corporation can prohibit smoking. The corporation must decide by special resolution at a general meeting to amend, add or change a by-law. I would recommend you seek legal advice or speak to a conveyancer who can assist you in the process of amending, writing accurate and fair by-laws, penalties applicable and registering them as by-laws are binding on the corporation and any by-law being proposed cannot be unfair and discriminate against a lot owner.
Flavia Ger Ace Body Corporate Management T: 08 8342 1544 E: flavia@acebod.com
This post appears in Strata News #384.
Question: I am unable to have my door open or sit outside due to smoke drift from my neighbour smoking on the balcony. What rights do I have to stop this?
I live in Adelaide in a small group of units. My balcony door faces my neighbours with just an approximately 2m brick wall between us.
My neighbour sits out on her balcony smoking with the smoke drift coming straight into my doorway. I have not been able to have my back door open for the past couple of years (except when I know she has gone out) & of course, it still seeps in through the closed doorway. I am unable to sit outside or eat outside when I BBQ.
I am not a smoker, I never have been, & find the constant smell offensive. I don’t want to be unfriendly about this situation but I have really had enough.
Are there any rules about my neighbour smoking on the balcony? I have lived in my unit almost 20 years with my neighbours here for the last 3 yrs.
Answer: Unfortunately in South Australia there is no legislation banning smoking within units however this can be seen as a nuisance.
A fundamental of living in a strata community is ensuring your actions do not unreasonably interfere with other occupants use and enjoyment of their unit or common property.
Please note the following extract from Schedule 3: Articles of Strata Corporation;
2. A person bound by these articles—
- must not obstruct the lawful use of the common property by any person; and
- must not use the common property in a manner that unreasonably interferes with the use and enjoyment of the common property by the other members of the strata community, their customers, clients or visitors; and
- must not make, or allow his or her customers, clients or visitors to make, undue noise in or about any unit or the common property; and
- must not interfere, or allow his or her customers, clients or visitors to interfere, with others in the enjoyment of their rights in relation to units or common property.
I would always recommend the first step be to raise your concerns about their smoking on the balcony with your neighbour over a coffee and see if they are able to take any action to reduce the impact on you. If they are not willing to take this step, your strata manager should be able to offer some alternate solutions and possibly impose a fine for breaching the articles.
Josh Smith Ace Body Corporate Management T: 08 8342 1544 E: josh@acebodycorp.com.au
This post appears in Strata News #128.
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This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
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