From the entire JS Mueller & Co team we wish you a Safe and Happy Festive Season!
We are taking a short break from the 23rd December 2015 and returning on the 11th January 2016.
For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266 and we’ll get back to you following our break.
The recent media attention concerning smoking in strata buildings reached a fever pitch when NCAT ordered the landlord of a strata unit in Potts Point to pay compensation to his tenant.
The NSW Government said that the new strata laws would make clear that smoking and second-hand smoke exposure could constitute a nuisance that could be outlawed.
So, what can be done about smoking in strata buildings? Can smoking be prohibited? Perhaps a smoking by-law, let’s find out.
For more information read – Smoke Drift By-laws
For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.
As the notion of living a healthy lifestyle continues to become increasingly prominent within contemporary society on a global scale, smoke-free environments are now being enforced in the form of strata by-laws.
While it is clear that Australia adopts strict smoke-free regulations within public areas and indoor workplaces, restrictions within apartment buildings and/or other multi-unit residencies are a fairly new phenomenon. This can be attributed to the increasing growth of community concern in relation to the harmful health effects that arise as a result of exposure to second-hand tobacco smoke.
Should strict by-laws be adopted?
One of the primary justifications as to why smoke-free strata by-laws have come into effect is due to the drifting of second-hand smoke into non-smoking residential property. The Cancer Council NSW offers a ‘Smoke Free Apartment Living Kit‘ and substantiates such claims by informing community members that their concerns are valid by stating “Scientific studies have measured significant levels of tobacco smoke contaminants in the apartments of non-smoking residents who live in a building where people smoke in other parts of their building”.
Smoke has a tendency to drift throughout a building within apartment lots and common property. Drifting may occur through various mediums including but not inclusive to air conditioning systems, stairwells, balconies and elevator shafts. Resultantly, individuals living within apartments and other multi-unit residencies are placing pressure on owners corporations to pass strata by-laws to prohibit smoking and encourage living in a smoke-free environment.
If smoke-free strata by-laws do come into effect there is no doubt that various positives are apparent. For example, non-smoking individuals will have a reduced exposure to second-hand tobacco smoke and thus reduce the possibility of encountering potential health risks such as asthma. Financial benefits are also evident as smoke-free environments contribute to a reduced risk of fire and cigarette related damage including burn marks on furniture, benches, carpets and walls; equating to reduced cleaning and maintenance costs. Most importantly, individuals living within a smoke-free environment may feel peace-of-mind within a residency that takes preventive measures to improve the health of all.
Or…should people have a right to smoke?
On the contrary, smoke-free by laws have sparked a great deal of fury, particularly towards individuals who prefer to adopt a smoking lifestyle. Smokers believe that such by-laws take away a right of one group at the expense of another and feel it is a denial of their legal rights, believing they should have a right to smoke within the boundaries of their lot. Subsequently, many questions raised include: Are my legal rights infringed? Will a designated smoking area be provided? Can a balance between smokers and non-smokers be struck? & How do I know if I live in a smoke-free environment?
Adrian Mueller, specialist strata lawyer with JS Mueller & Co, says, Strata buildings have the ability to enforce by-laws prohibiting smoking. Existing strata schemes that do not have smoke-free by-laws can bring them in, but only if a 75% majority vote is obtained ”.
Adrian continues by saying, “There are available options to address the problem of smoke drift within apartment blocks. The level of detail within a strata by-law prohibiting smoking will vary due to individual circumstances. The by-law might ban smoking on any or all of the common property, a lot’s outdoor areas and even a lot’s indoor areas.”
For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.
Traditionally, keeping animals in apartment or unit buildings have been sternly frowned upon.
Rigid by-laws (the rules governing the day-to-day ‘housekeeping’ of the strata scheme) imposed by owners corporations have tended to be rigid and often subject to change at very short notice − and often not generally in favour of the tenant − and have led to many unfortunate events occurring where ‘hidden’ pets have been revealed in the most unpleasant circumstances, resulting in hefty fines and/or fractured (or terminated) living arrangements.
And with an estimated one in five people in New South Wales living within a strata scheme, the chances of a potential (or current) tenant owning a pet are high.
Essentially, pets should not be kept in strata accommodation without owners being sure of the relevant pet by-laws and obtaining the necessary approvals. Pet owners are affected by both their strata community’s by-laws and their state legislation (although owners corporation consent is not necessary to keep a guide dog in a strata scheme).
When renting in a strata building, the by-laws should be reviewed and the real estate agent should confirm with the landlord of the property whether a pet is allowed. When buying, the terms of the by-laws should be confirmed with the owners corporation, and those terms should be explained to the purchaser by an experienced strata lawyer prior to entering into a contract.
Under recent legislation reviews in New South Wales, the NSW Fair Trading Minister has confirmed that changes to the legislation include default by-laws being altered so that pets will be allowed, subject to ‘reasonable’ approvals and conditions set by executive committees, or owners corporations.
However, if an existing strata scheme has a by-law which bans pets that ban remains in place under the new legislation. Equally, if an existing strata scheme wishes to allow pets, a by-law will still need to be voted in. If a new strata scheme wishes to ban pets it can do so by introducing such a by-law, if a 75% majority vote is obtained.
Adrian Mueller, specialist strata title lawyer with Sydney’s JS Mueller & Co, says “that the changes will have an impact on new strata buildings as the new laws will apply to them. But the new laws will not apply to existing buildings unless owners corporations choose to adopt them.”
A professional speaker at forums on strata law for strata managers state-wide, Adrian says, “often people do not bother to check the by-laws before moving into an apartment. This is foolish and can lead to significant and expensive problems for pet owners.”
With by-laws and state legislation being updated regularly, the advice from JS Mueller & Co is that pet owners should always obtain a copy of their strata by-laws from the owners corporation and legal advice should also be obtained. Should a dispute arise assistance is also available from the relevant state government department, NSW Fair Trading.
For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.