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The legal position on smokefree flats, apartments
and community housing varies
between countries and between Australian states and territories.
But the trend is towards making available more smokefree shared and high
density housing. There is an increasing demand for this, as people
become more aware of secondhand smoke health risks and less tolerant of
smoke drifting into their homes.
Latest developments and resources:
NSW / AUSTRALIA
Strata corporations adopt smokefree
bylaws
May 2010: A number of strata
corporations in NSW have enacted smokefree bylaws following the decision
in the Highgate case (see Legal Precedents below). One example,
adopted by owners of a block of flats in the eastern Sydney suburb of
Kensington:
Specially
resolved that the following special by-law 5 be created:
Special By-law number 5 - Smoking
In accordance with Strata Schemes Management Act 1996,
Sections 47, 117, 45:
1 The proprietor or occupier of a lot must not smoke nor allow
smoking within a lot or within the common property.
2 Without limiting para 1, the proprietor or occupier of a lot
must not allow any invitee to smoke within his / her lot or upon
common property.
3 The Owners Corporation delegates to the strata managing agent
responsibility for:
(a) The service of a notice, in a form approved by the Director-General,
on the owner or occupier of a lot requiring the owner or occupier to
comply if satisfied that the owner or occupier has contravened this
by-law and
(b) Commencing legal proceedings
seeking Orders, requiring a person who fails to comply with a
notice served in (a), to pay the statutory pecuniary penalty and any
costs of the Owners Corporation in the proceedings.
ASH draft smokefree
bylaw for NSW strata
owners
ASH, with legal guidance, has drafted a bylaw that could be
used as a basis by strata corporations under the
NSW Strata Schemes Management Act 1996. In its present form it's a bit NSW-specific but could easily be adapted for other
jurisdictions or to suit the specific situation. A bylaw would need
to be properly registered after qualified legal advice. See the
draft bylaw
Facebook group
2009: Some concerned citizens have
started a Facebook
group to exchange information and campaign for improved laws
to protect people from being harmed by others' smoke in high-density
housing. Check the page and consider joining.
Hanging out the sign: these flats are smokefree
2008: These signs on a block of Sydney flats show that the
owners have made them smokefree - a legal decision and in the interests
of residents and visitors.
Legal precedent: smoking declared a nuisance under NSW
strata law
2006: Smoking is legally a "nuisance" under NSW strata title law,
a
decision by the Consumer, Trader and Tenancy Tribunal in the
"Highgate" case authorising a North Sydney owners' corporation to prevent tenants smoking in their unit where
smoke drifts into other units or common areas. There was no appeal
against the decision, rendering similar actions likely to
succeed. See the
decision
In the earlier case of Salerno v Proprietors of Strata Plan No. 42724
(8 BPR 15,457) settled in the NSW Supreme Court on 8 April 1997, the
court ruled that it was within the power of the Owners Corporation to ban smoking by both
occupants and visitors.
Smokefree housing
resources and info
The Cancer Council NSW has produced an excellent
factsheet, Smoke
drift in apartment blocks: what you can do (2007) summarising options for
NSW residents concerned about smoke drift. Much of the information is also
relevant to other jurisdictions.
When advocating for improvements, it's always good to
quote some of the latest HEALTH
RESEARCH on harm from secondhand smoke.
Smokefree public housing policy
2005: Australia's largest landlord, the NSW
Department of Housing, implemented its smokefree policy after consultation with peak tenant groups. ASH had
advocated with the Department since 2003 after complaints of smoke drift in internal common areas.
The policy was a key achievement for the Department, which managed 130,000 dwellings
including 68,000 units. It included permanent "Smoke free" signs in each unit
block; no-smoking in all common areas; mediation
and guidance by the Good Neighbour Policy for uncooperative smokers. It was proposed to include
review and
evaluation. See
NSW Dept of Housing's (2005) SmokeFree
Areas In Public Housing FactSheet
Retirement villages
In NSW, Under the Retirement Villages
Regulation 2000, smoking is not permitted in any building (other
than the premises of residents) or other enclosed parts of common areas.
INTERNATIONAL
Concern over the right to smokefree housing is growing
worldwide. Latest developments:
US: Call for regulation for
smokefree public housing
2010: A paper in the prestigious New England Journal of Medicine has
called for Federal regulation to ensure public housing is smokefree. The
examination of policy options concludes: "The same legal, practical and
health issues that have driven [smokefree workplaces and other places] militate
in favour of extending similar protection to the vulnerable public-housing
population." See the paper
Canada: Public demand for more
smokefree shared/high-density accommodation
2008: A survey of people in flats and apartments in British Columbia has shown a strong
demand for smokefree buildings. See Smokefree
Housing BC
US: City bans smoking in apartments
2007: The city of Belmont, near San Francisco, banned smoking in
condominiums and apartments, including their patios and yards. Any
multi-floor, multi-unit building sharing common floors or ceilings is
covered. Transgressors face fines of up
to US$1000. Property owners must insert no-smoking
provisions in new or renewed leases. See SFGate.com
report 11/10/07
See latest HEALTH
RESEARCH on harm from secondhand smoke
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