Victoria- What’s yours and what‘s common property?
June 27, 2017
Winter Warning: Is Your Apartment Building Fire Safe?
June 28, 2017Victoria- What’s yours and what‘s common property?
June 27, 2017Winter Warning: Is Your Apartment Building Fire Safe?
June 28, 2017Is it illegal to smoke cigarettes in an Owners Corporation?
By Stephen Raff
Expert Opinion piece – Stephen Raff, CEO of Ace Body Corporate Management.
The legal position on smoking in Owners Corporations varies between each state and territory in Australia and as such this article will focus on Victoria specifically. As greater awareness continues to highlight the disastrous impact that second hand smoke can have on the health of individuals, never has this issue been more relevant to people living in Owners Corporations.
Despite both the state and federal governments’ best efforts to decrease smoking levels by increasing the tax excise on all tobacco products and introducing mandatory plain packaging on all cigarettes sold, Australia still has a big problem. The 2013 National Drug Strategy Household Survey report found that the smoking rate of Australian adults had almost halved since 1980, however the current smoking rate in Victoria was still at 12.6% of the total adult population (aged 18 years and over).
Recent bans have extended the number of public locations where smoking is banned and where smokers may incur on-the-spot penalties. These include schools and kindergartens, childcare centres, the Parliament of Victoria, public hospitals and registered community health centres, courts, police stations and certain Victorian Government buildings.
Smoking is also prohibited within 10 metres of outdoor recreational areas where children play, including playgrounds, skate parks, public swimming pools, and sporting venues during under-18s events. On 23 August 2015, the Victorian Government announced that smoking will be banned in outdoor dining areas from 1 August 2017.
So with smoking rates declining in Victoria and smokers increasingly being disallowed from lighting up in certain areas, how does this impact people smoking in Owners Corporations and what does the current Owners Corporation Act 2006 and Regulations 2007 say?
What does the legislation say?
Currently owners are allowed to smoke in their individual lots, but not in areas of common property unless a designated ‘smoking area’ can be clearly identified on the Owners Corporation. This often becomes difficult to govern when smoke can easily travel to a neighbouring property and affect the health, safety and security of the individual through second hand smoke. Furthermore reverse cycle air conditioners, common to many apartment buildings are often taking the second hand smoke from one individual and circulating it to other members of the Owners Corporation.The Owners Corporation Regulations 2007, Model Rule 1.1 stipulates ‘A lot owner or occupier must not use the lot, or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier, or user of another lot’. With the evidence irrefutably supporting the danger of second hand smoke towards people, it is easy to argue that this is in breach of the health and safety of individuals as listed in the model rules of the Owners Corporation.
However, ultimately cigarettes are a legally sold item in Australia and it is extremely difficult to prove that someone is in breach of model rule 1.1 when the effects of second hand smoke cannot be immediately measured. Increasingly, newer buildings are creating their own rules banning the smoking of cigarettes on balconies or in the constraints of an individual’s dwelling, but this does not help older type buildings or non-compliant strata complexes.
Owners Corporations under the 2006 Act are able to pass a rule as a special resolution at an AGM, prohibiting smoking in designated common property areas. Once this rule has been passed and after issuing a contravention notice, action can be taken against those thought to be breaching the rules by VCAT and a maximum fine of $250 can be administered.
Once again this is difficult to prove and even more difficult to prosecute.
What are the plans for the future?
Interestingly enough, recently an issues paper released by Consumer Affairs Victoria reviewing the Owners Corporation Act 2006 has for the first time raised the possibility of Owners Corporations making rules about smoke drift as a nuisance, effectively allowing the OC to ban smoking in a person’s home.The issues paper is asking whether there should be a model rule regarding smoking in Victoria as has recently been the case in the NSW legislation change which is yet to take effect. Victorian decision makers will be closely watching their NSW counterparts to see how the smoking model rule is received by owners.
The Victorian Consumer Affairs issues paper is seeking feedback until the end of April and can be found here.
Other areas of common misinformation are:
- buyer rights when purchasing a property ‘off the plan’
- concealed defects that may be hiding within the building structure of their unit
- potential future hidden costs such as galvanised water piping that will eventually need replacing with copper piping.
- potentially sharing one water or gas meter that other owners may want to separate (which can be an expensive exercise)
- -confusion over fence ownership and suddenly finding you are up for a share of the cost for replacing all of the boundary fences on common property.
- the absence of money in the administration fund to pay for running the strata community (including paying for the strata community insurance) or the absence of money in the maintenance fund to maintain the property to a high standard.
- an existing liability claim against the body corporate for a trip, slip or fall claim on common property, for which new owners may have to foot some of the bill( although it would be rare that there would be insufficient liability cover or that the insurance company failed to cover the claim).
Before purchasing a strata property, I encourage you to introduce yourself to your future neighbours and get a feel for the community and gauge whether this is a suitable living environment. Contact the strata committee or manager and find out as much information as possible about the property including the financial state of the strata community.
Perhaps most importantly is to obtain a copy of the plan of subdivision and rules or bylaws of the property. The plan of subdivision will outline exactly what you are purchasing as an individual and what you are buying into as part of the strata community. The rule or bylaws may differ from each property so it is important that you read this in detail as it outlines your rights in relation to important issues such as pets, parking, noise and even rubbish removal.
Having highlighted some of the potential downsides, there are many positive aspects of buying into a strata community. Buyers often don’t realise that the strata community’s buildings are usually covered under one insurance policy and that there is one common area liability insurance cover as well. So there is no need for individual owners to take out separate building insurance cover for their unit; often the strata community cover offers a more expansive policy. If you are aware of some of the common traps then you can avoid heartache down the track and ensure that you get value for your purchase dollar.
www.acebodycorp.com.au