Unit owner barred from smoking on their balcony and the decision that will reverberate through Qld, experts say

[JohnS]

This article was written just yesterday. It concerns a legal dispute in a set of apartments between two residents on the eighth and ninth floors respectively. I wonder what ramifications it could bring here for strata laws in Australia?

Unit owner barred from smoking on their balcony and the decision that will reverberate through Qld, experts say

A landmark ruling against a unit owner, barring them from smoking on their own balcony is a game-changer for body corporate complexes.

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A unit owner has been barred from lighting up on their own balcony in a game-changing watchdog decision that will now make it easier to ban smoking on apartment terraces, experts say.

The Body Corporate and Community Management (BCCM) has barred a unit owner at Artique Resort, Surfers Paradise from smoking any “tobacco products” on their balcony following a complaint from an owner of an apartment on the floor directly above.

A landmark ruling following a complaint by a unit owner at Artique Resort, Surfers Paradise will make it easier for body corporates to ban smoking on balconies, experts say. Picture Glenn Hampson

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The aggrieved resident on the ninth floor claimed her eighth-floor neighbour was a “chain smoker” and the smoke entering her unit was “relentless and unbearable”, the December 21 ruling stated.

The ban has been based on second-hand smoke being a “hazard” and that the complainant had provided “sufficient evidence” as to the “volume and frequency” of the smoke drift, the adjudicator wrote.

The adjudicator stated there was insufficient evidence to prove the second-hand smoke was a “nuisance”, but enforcing a ban on the grounds of smoke being a “hazard” is a seismic change, said former BCCM commissioner Chris Irons.

Former Commissioner for Body Corporate and Community Chris Irons says this is a major change in how rulings against smoking on balconies will be determined, Picture: John Gass

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Before the ruling, complainant’s had to gather evidence to prove smoking was a nuisance and it was nigh impossible, Mr Irons said.

“It was very difficult to prove that smoke, drifting into your apartment, was a nuisance, but this decision means you only need to show it is a hazard and that changes everything,” said Mr Irons, who now acts as a body corporate consultant.

“There are a lot of people who can now take action who couldn’t before.”

In their defence, the eighth-floor smoker claimed they were “not hurting anyone”, that they could smoke “anywhere on her property”, that they could not control the direction the “wind blows” and objected to being “dictated to”.

This is the balcony on the eighth-floor apartment where a resident has been banned from lighting up. Picture: Supplied

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They also stated that they had a disability and “going downstairs was out of the question”, asked why the complainant could not “buy a fan” and that they too, had “cigarette smoke, marijuana smoke, BBQ smoke, strong perfume smells” waft into their unit.

The adjudicator stated that “owners and occupiers within a community titles scheme do not have unfettered rights” and are bound by body corporate by-laws.

“Although smoking is not inherently illegal, controls exist on smoking in many contexts within the community because of its potential to harm others,” they wrote in the decision.

Kristi Kinast, Strata Community Association Qld president, says all residents need to do is prove smoke wafts from one apartment to another to have a ban on smoking on balconies. Picture: Supplied

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In effect, the ruling has lowered the bar on the proof required to stop smoking on balconies, said Strata Community Association (Qld) president Kristi Kinast.

“Previously communities had tried and failed … to see smoking on balconies ruled a nuisance,” Ms Kinast said.

“This adjudication is the biggest change to body corporate law in Queensland in the past two decades and will make it much easier for communities to ban smoking on balconies, all they will have to do is prove that smoke drifts from one balcony to another.”

The eighth-floor resident is permitted, however, to smoke within their apartment but needs “to take reasonable steps to make sure smoke drift does not affect neighbouring lots”, the adjudicator wrote.

In delivering the finding, the adjudicator took aim at the body corporate for not making a submission on the dispute and that it had a statutory obligation to enforce bylaws.

“If it (body corporate) was unsure if the bylaw had been breached, it could have asked the applicant for more evidence to assist it in making a decision,” they wrote.

“However, I do not consider that it could fail to act simply because it thought it was not its responsibility to decide if the bylaw had been breached or that it was just a matter between residents.”

The body corporate management for Artique Resort was contacted for comment.

Original Source: https://www.realestate.com.au/news/unit-owner-barred-from-smoking-on-their-balcony-and-the-decision-that-will-reverberate-through-qld-experts-say/?rsf=syn:news:nca:news:spa:strap

[BEVOSREVENGE]

Nothing screams freedom more than stomping out the rights of your neighbors.  🤢

[Cigar Surgeon]

That is a big yikes.

I've been holding my breath here in Canada that a similar ruling would eventually be coming. As a condominium owner I've been waiting for the shoe to drop for provisions to come in preventing smoking on balconies, driven by the legalization of marijuana.

[Ken Gargett]

inevitable. 

[HarveyBoulevard]

6 minutes ago, Ken Gargett said:

inevitable. 

Sadly, I agree.  This will be the norm everywhere eventually.

[...]

Here in Quebec, the francophone bit of Canada, I am aware of many condominium buildings which have had quorum votes against smoking (regardless of the material being smoked) both inside the units and on the balconies. I do not know how these quorum voted regulations would hold in the civil (provincial) court but I am glad my neighbours are as private as I and have their houses at least 200 ft away 😅

[Chibearsv]

Then I should be able to argue that car exhaust is entering my unit which poses a danger so they need to shut down the roads surrounding the building.  Idiotic ruling

[Ken Gargett]

the problem is that i think this was a unit full of cigarette smokers who basically chain smoked. must confess i detest the smell of cigarette smoke and would hate to have that near me. 

it was always going to happen. 

[...]

Just now, Ken Gargett said:

the problem is that i think this was a unit full of cigarette smokers who basically chain smoked. must confess i detest the smell of cigarette smoke and would hate to have that near me. 

it was always going to happen. 

As an anectdote, I visit a certain good friend about four times a year, probably two times when it would be seasonally comfortable to smoke on the balcony, and our smoking these cigars twice a year (one cigar each, on each occasion) was enough to have the fourty or so condo owners of the building vote on a smoking ban on the building's balconies...

Bans are rarely specific and understanding, they strawman and slippery slope their way into the plebe's subconciousness and aim at normalizing a certain righteousness of the hater's class... obviously being subjective here 😋

[La_Tigre]

5 minutes ago, Ken Gargett said:

the problem is that i think this was a unit full of cigarette smokers who basically chain smoked. must confess i detest the smell of cigarette smoke and would hate to have that near me. 

it was always going to happen. 

Yep, the “my rights” bunch instead of attempting to be reasonable. Maybe buy a scrubber fan to grab the smoke for your upstairs neighbor’s well-being?

[Ken Gargett]

1 minute ago, La_Tigre said:

Yep, the “my rights” bunch instead of attempting to be reasonable. Maybe buy a scrubber fan to grab the smoke for your upstairs neighbor’s well-being?

i thought of some form of fan as well. 

given that smoking has been banned in so many situations, this was inevitable. the problem is that for most of us, it would be an occasional cigar. but you can't work out some arrangement under the ban to cover that - they tend to be all or nothing. i would hate (and i sympathise with the woman who complained) to be subjected to endless cigarette smoke. should they be forced to live behind permanently locked/shut doors and windows? rock and a hard place stuff. 

just as with taxes, sadly cigars and cigar smokers get lumped in with cigarettes and cig smokers. 

[Nevrknow]

3 minutes ago, La_Tigre said:

Yep, the “my rights” bunch instead of attempting to be reasonable. Maybe buy a scrubber fan to grab the smoke for your upstairs neighbor’s well-being?

Exactly. I am of the " my rights group" but, there's always a but 😁, I would definitely work on a solution ( fans, smoke eater, candles etc ) to alleviate the extent of any complaints. Working together usually produces the best result. 

But there's always an ass in the crowd. 🤣

[La_Tigre]

6 minutes ago, Nevrknow said:

Exactly. I am of the " my rights group" but, there's always a but 😁, I would definitely work on a solution ( fans, smoke eater, candles etc ) to alleviate the extent of any complaints. Working together usually produces the best result. 

But there's always an ass in the crowd. 🤣

Communication and active listening to build an agreeable solution fix 70% of these problems. The other 30%?? Wellll, let us show you our peacock’s ass. 🤣 

[Fuzz AI]

Far easier solution.... swap apartments. Then the smoke won't go up into her apartment.

[Chibearsv]

47 minutes ago, Ken Gargett said:

i thought of some form of fan as well. 

given that smoking has been banned in so many situations, this was inevitable. the problem is that for most of us, it would be an occasional cigar. but you can't work out some arrangement under the ban to cover that - they tend to be all or nothing. i would hate (and i sympathise with the woman who complained) to be subjected to endless cigarette smoke. should they be forced to live behind permanently locked/shut doors and windows? rock and a hard place stuff. 

just as with taxes, sadly cigars and cigar smokers get lumped in with cigarettes and cig smokers. 

Even if you’re in a shared building, solutions are best sorted out between neighbors instead of through a regulatory agent like a condo association or worse, a government agency. I think the loss of the ability to compromise solutions gets more epidemic each year. Sad. 

[Ken Gargett]

13 minutes ago, Chibearsv said:

Even if you’re in a shared building, solutions are best sorted out between neighbors instead of through a regulatory agent like a condo association or worse, a government agency. I think the loss of the ability to compromise solutions gets more epidemic each year. Sad. 

true, but having lived in a block of units (only 8), i know how difficult it can be to get consensus. especially when you have idiots. only need one (the bloke who took over as our chairman was truly the dumbest human i've met - guys who were renting one of the units convinced him that the common property area was theirs and charged him to park his car there). 

you can imagine the cigarette smokers insisting they were entitled to smoke on the balcony and if they are chain smokers, would be hard for them to stop. the woman upstairs would have got to the stage that any cigarette smell would be found to be offensive. there would have been words. she would have gone to the body corp which could do nothing. so the smokers would not have been conceding and it would have just gone downhill from there. 

[SpecialK]

7 hours ago, JohnS said:

Kristi Kinast, Strata Community Association Qld president, says all residents need to do is prove smoke wafts from one apartment to another to have a ban on smoking on balconies.

If I was her... I'd get that thing on my forehead checked out with a reputable dermatologist .....

[patrickamory]

In practice though, how does this get enforced?

[Chibearsv]

3 minutes ago, Ken Gargett said:

true, but having lived in a block of units (only 8), i know how difficult it can be to get consensus. especially when you have idiots. only need one (the bloke who took over as our chairman was truly the dumbest human i've met - guys who were renting one of the units convinced him that the common property area was theirs and charged him to park his car there). 

you can imagine the cigarette smokers insisting they were entitled to smoke on the balcony and if they are chain smokers, would be hard for them to stop. the woman upstairs would have got to the stage that any cigarette smell would be found to be offensive. there would have been words. she would have gone to the body corp which could do nothing. so the smokers would not have been conceding and it would have just gone downhill from there. 

Yep, I get it. I just don’t like it any more than you I’m sure. My wife is on the subdivision board here and I managed to go to only one board meeting with her in the past 15 years. It was mind numbing what my neighbors complained to the board about, as if their $150 annual assessment used to cut the grass in the retention ponds gave them rights to bitch about everything that irked them and that the board would fix it. My announcement as I left that meeting, that they were all nuts wasn’t well received 😁 

[Edicion]

Just out of curiosity, do they allow BBQing (even a small grill/Japanese style) on balconies and such where smoking is banned?

[...]

1 minute ago, Edicion said:

Just out of curiosity, do they allow BBQing (even a small grill/Japanese style) on balconies and such where smoking is banned?

depends, some specifically forbid coal, or gas, or all BBQing... 

[Bijan]

3 minutes ago, Edicion said:

Just out of curiosity, do they allow BBQing (even a small grill/Japanese style) on balconies and such where smoking is banned?

a lot of places ban it, but I think it's mostly on safety grounds not based on smoke output

[Fuzz AI]

2 hours ago, Edicion said:

Just out of curiosity, do they allow BBQing (even a small grill/Japanese style) on balconies and such where smoking is banned?

Here in Sydney, as far as I'm aware there are no restrictions on cooking on your balcony apart from no solid fuels (ie only gas or electric). You are required to limit the amount of smoke that wafts around so that it doesn't affect other residents. A lot of people have a small Weber Q or similar bbq on their balcony, a friend of mine even had a 5 burner gasser on his, and nobody complained.... mainly because the smell of curry wafting in the apartment complex would have hidden any smells that he could have made from bbq-ing.

I did have one customer complain to me that after filling and lighting his charcoal chimney, once it was lit and the contents poured out, he put the still hot chimney on his balcony floor and it cracked his tiles. I asked, "You know you aren't allowed to use solid fuel in an apartment?". He said nobody complained about his bbq as he was on the top floor and nobody could smell it.

[Kitchen]

This is one of the reasons my wife and I opted to own land as opposed to a section of the sky.  

Alas, I currently live in a connected townhouse (a row home as they are called in Philly) and could see this happening here even with this, which is another reason we are looking for a farmhouse with a barn and 10+ acres out in the country.  

Being in the middle of the country has its advantages.  

[Greenhorn2]

37 minutes ago, Kitchen said:

This is one of the reasons my wife and I opted to own land as opposed to a section of the sky.  

Alas, I currently live in a connected townhouse (a row home as they are called in Philly) and could see this happening here even with this, which is another reason we are looking for a farmhouse with a barn and 10+ acres out in the country.  

Being in the middle of the country has its advantages.  

Totally agree. I bought a cheap modular home and stuck it in the middle of a 53 acre parcel of land. Best move I've ever made and will never contemplate moving.