Smoking in enclosed areas of the common area of common property is
prohibited by law under theTobacco and Other Smoking Products Act 1998.
According to Ryall, many other schemes have gone further and passed
by-laws prohibiting smoking on all common property, for example in and around
the swimming pool.
There have been some recent rulings regarding smoking within units where
the smell escapes through the balconies, under doors or into the extraction system,
The rulings
have found a body corporate doesn't have the authority to prohibit
smoking within a unit including on balconies as these are private homes.”
Some schemes have passed by-laws stating residents can’t smoke on
balconies where it causes a nuisance to neighboring units.
Unfortunately, these by-laws are very difficult to enforce. The
rulings have noted for smoking to be considered such a nuisance restrictions on
the use of private property should be imposed, the smoking must be excessive.
The rulings
have actually gone further and suggested an onus on the neighboring lots to
attempt to minimise the smoke coming in by closing their balcony doors.
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Jason Gwerder
Tuesday, 6 April 2021
