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Like many blocks, we have experienced problems with cigarette smoke. We know but can’t prove who the perpetrators are, and some owners are getting frustrated. One couple came to me (as chairman) and said they wanted to create a By-Law declaring the entire bock to be non-smoking. This would include inside each unit.
My initial response was that I don’t think the Owners Corporation has any authority to control whether people can smoke or not inside their own units. I would be interested to see others’ comments – has anybody tried this, and if so what happened? Do you think it would be enforceable, or just a waste of time and money?
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A ban on common property seems to be not uncommon. There is much discussion of this topic here. A blanket prohibition on smoking anywhere on lot or common property could be construed as “harsh” or “oppressive” and invalidated on that basis ie that it is harsh that smoking is prohibited within a lot if the smoke does not escape or becomes adequately diluted and diffused.
Sir Humphrey, what you said is pretty much the model By Laws STRATA SCHEMES MANAGEMENT REGULATION 2016 SCHEDULE 3 which states:
OPTION B
(1) An owner or occupier of a lot, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property, except–
(a) in an area designated as a smoking area by the owners corporation, or
(b) with the written approval of the owners corporation.
(2) A person who is permitted under this by-law to smoke tobacco or any other substance on common property must ensure that the smoke does not penetrate to any other lot.
(3) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
Can Lot owners put “no smoking” or “no pets” clauses in leases?
We know but can’t prove who the perpetrators are, and some owners are getting frustrated.
This is the key. There must be some way that you can prove who is doing the smoking. If it’s on another balcony, set up a spy-cam on a (friendly) building opposite. And no, before we get the privacy argument, it’s not illegal. You can photograph or film anyone anywhere provided it’s not for sexual or illegal purposes and you have the permission of the people on whose property the camera is situated.
But to answer the original question, you can’t stop people doing what they want in their own lot if it’s legal and you can’t show that it’s harming other residents.
Which brings me back to my first point …
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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