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Owners corporation law

10 Dec 2015

How to combat the issues of smoke drift from balconies and the dropping of cigarette butts into units below is no doubt a familiar and frequent talking point for committee members at owners’ corporation meetings.

And there are no hard and fast obvious solutions for these problems also.

By special resolution, an owners’ corporation can pass a rule to prohibit cigarette smoking and the dropping of butts on residential balconies and can prohibit smoking on common property, however the enforcement of these rules is another matter entirely.

Some owners’ corporations have set up infra-red cameras to detect when cigarette butts are thrown at night, but this technology is expensive, and there are obvious privacy issues to overcome. The task of actually catching up with the offending smoker and / or litterbug is even more difficult, especially as it adds to the workload of the building management, and often the matter becomes a dead-end if the person was an invitee of the resident, or even a guest in a short-term stay apartment.

One building that I acted for recently took the extraordinary step of paying for the installation on all balconies in the building of custom-made inbuilt cigarette ashtrays. While this dealt with the issue of litter, it also had the effect of indirectly legitimising the practice of smoking on the balconies, and the building now has an unofficial tag of being a “pro-smokers” building.

Smoke drift is also a big issue and a source of concern for permanent residents.

In November in NSW, a Sydney landlord was ordered by the NCAT (NSW’s tribunal) to compensate a tenant to the tune of $11,600 for failing to provide a safe unit to live.

In this case, the tenant in the flat below was a chain smoker and the smoke from his unit drifted upstairs through the internal ventilation passages. The tenant claimed the smoke was making her and her daughter unwell. The landlord claimed that the alleged failure to provide premises fit for habitation was outside his control, that the smoke drift was caused by faulty building design, and that he had made reasonable attempts to resolve the issue.

The tribunal disagreed, and ordered the landlord to pay rent reduction, packing and moving costs, as well as administrative fees.

This case should serve as a cautionary tale and a sobering reminder to landlords and OC committees that they owe a duty of care to residents to take all possible steps to resolve issues about smoke drift.

While there will always be guests and invitees who flout the building’s rules (because they are there for a good time not a long time) all committees should ensure they are seen to be taking all steps to reduce, restrict and regulate issues relating to smoking in residential units, lest they be made an example of by VCAT by being ordered to pay damages to a resident harmed by the smoke.

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