This question is about smoke drift from a neighbour smoking on their apartment balcony in WA.
Question: I can’t have my doors or windows open because of my neighbour who smokes. What are my rights?
My neighbour smokes right on the boundary of our ground level units and right next to my washing. I can’t have my doors or windows open because of this smell.
What are my rights? There are plenty of other spots within their lot they could smoke in that wouldn’t affect anyone.
Answer: It may be worth seeking feedback from the other owners in the complex to see whether they would be interested in having a smoking bylaw drafted to help create more specific regulation on smoking in the scheme.
Section 83 of the Strata Titles Act 1985 requires owners or occupiers of a lot must not use, or permit the use of, the lot or common property of the strata titles scheme in a way that interferes unreasonably with the use or enjoyment of another lot or the common property by a person who is lawfully on the lot or common property.
Compliance is always a better approach than enforcement, so we recommend in the first instance it’s often a good idea to approach the offending resident from a place of respect, as they may not be aware of the impact they are having. You may be able to come to an arrangement that suits both of you for example.
Failing that, or if you feel uncomfortable with that process, you should contact your Strata Manager and/or the Council of the Strata Company. They will be able to assess the issue and decide on the best approach to help resolve the problem. If your scheme does not specifically have a bylaw that governs or regulates smoking and second-hand smoke, then you will likely be relying on Section 83 to try to manage the issue. The Strata Manager and/or the Council of the Strata Company would seek the resident’s compliance by raising the issue with them and opening a discourse with them to try and resolve the issue.
It may be worth seeking feedback from the other owners in the complex to see whether they would be interested in having a smoking bylaw drafted to help create more specific regulation on smoking in the scheme. A bylaw could prohibit smoking on common property or control where smoking may take place on Common Property, or it could be just in relation to smoke drift. A smoking bylaw would help create awareness and clarity on what the owners of the scheme feel are reasonable. This may be followed up as appropriate with no-smoking signs in certain areas, etc.
It is important to recognise whilst the Strata Company can have more direct control on what people do on Common Property, they can’t outright ban behaviour within lots (provided it’s not disruptive). Therefore, working towards an amicable solution that allows all residents to live harmoniously together should be the outcome that the Strata Company seeks.
ESM Strata E: mchurstain@esmstrata.com.au P: 08 9362 1166
This post appears in the September 2021 edition of The WA Strata Magazine.
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