You ask, we answer
Each month we answer a question about living in a community title. Our reader is being smoked out and wonders what she can do about it.
Question:
I live in a group of strata units where a fence only separates the townhouses and backyards. My neighbour is a heavy smoker who stands by his fence and has a cigarette every hour. For the past seven years, I have not been able to sit in my backyard, open my back door or have my bedroom and kitchen windows open as the smoke and smell comes straight in.
I have politely asked if he could smoke around the other side of his house, but they haven't acknowledged my request. Our Strata Manager says there is nothing that can be done. Can you help in any way?
Kind Regards,
Donna Air
Answer:
Dear Donna Air,
I feel your frustration. Smoking, in particular, is an area of great contention.
Schedule 3 of the Strata Titles Act says you must not interfere with others in the enjoyment of units or the common property, and your neighbour is certainly hindering your enjoyment of your home. On the flip side, smoking owners have told me that not being able to smoke in their homes would also impact their enjoyment.
Although I would suggest that you seek independent legal advice, as I understand it, there isn't currently a legal argument supporting your position.
In the interim, perhaps you can take heart in the fact that there is a bill currently before parliament to amend the Strata and Community Titles Act. Under proposed amendments, Articles / Bylaws could be amended to automatically include a statement that owners must not allow smoke to drift onto common property or another lot.
Best wishes,
Carrie McInerney
CEO
Horner Management