Thinking Inside the Box

A Paddocks Sectional Title Lifestyle Blog

Smoke Free Apartment Living – A Glimpse into the Future?

Smoking Nuisance

The issue of second hand smoke in sectional title schemes often comes up. A non-smoker lives above or next to a smoker and has to bear awful second hand smoke wafting into his apartment day in and day out. It can be very unpleasant.

What can the non-smoker do about it?

1)   Chat to the smoker – try to come to some kind of arrangement, perhaps limiting the times that the smoker smokes on his balcony to certain times of the day when the non-smoker is not home.

2)   Declare a dispute and start arbitration or court proceedings against the smoker based on the premise that the second hand smoke is a ‘nuisance’ to the non-smoker. But this is such a costly option and there is no guarantee that an arbitrator or judge would rule that second hand smoke is a nuisance, so the chances of the non-smoker going down this road are slim.

3)   Rally the support of other like-minded owners and pass a body corporate rule preventing or limiting smoking in the scheme. But even if passed by the required consensus level would such a rule be enforceable? It seems such rules can be made and are enforced in community schemes in Australia, Canada and the USA…

Smoke Free Strata Title Schemes

I was doing some research on the legality of preventing smoking (tobacco) in sectional title schemes and came across an Information Sheet distributed by the Cancer Council of New South Wales, Australia, that encourages “Smoke Free Apartment Living” and gives tips to owners attempting to achieve this is in their strata schemes.

It encourages owners to rally the support of other owners in the scheme and pass a rule (‘by-law’) like this one prohibiting smoking throughout the entire development, ie. inside privately owned sections (‘lots’) and anywhere on the common property. A complete ban on smoking anywhere in the scheme. From a practical perspective what would this mean:

  • Investor owners (landlords) would only be allowed to rent their units to non-smokers and the prohibition against smoking should be included in the lease agreement
  • Resident owners would have to commit to not smoking at the scheme
  • When an owner puts his unit on the market it would need to be advertised as a smoke free scheme so that potential buyers know what they are buying into
  • No smoking signs should be erected around the common property so that visitors are aware of the no smoking rules and occupiers would be responsible for ensuring their visitors obey this rule

According to this Information Sheet, two major benefits of going smoke free in your scheme are:

  • Insurance premiums are reduced due to reduced fire risks; and
  • The value of the properties in the scheme increase as many buyers are willing to pay more if they are guaranteed a smoke free living environment.

South African sectional title law is largely based on the original NSW strata title legislation and in our case law judges often refer to Australian judgments. So the Aussie strata law developments are often adopted by us, although slightly later down the line. Smoke free schemes are not limited to Australia though, it appears to be a global trend with many smoke free schemes being established in Canada and the USA as well.

Could smoke free sectional title schemes be something we will see in South Africa in the future? I sure hope so.

Want more info on this? Read the NSW Cancer Council’s FAQs on Smoke Free Schemes

What do you think? Comment below.

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2 comments on “Smoke Free Apartment Living – A Glimpse into the Future?

  1. Margie Cawcutt
    November 9, 2013

    Good morning

    I hope that you can assist me.

    I am a smoker (maybe ten a day) and my partner (maybe 20 per day). I have being staying in a complex for 4 1/2 months. Have an excellent track record regarding paying my rent. A couple with a young (maybe 11years) son moved into the flat below me and have complained that even though my doors and windows are closed (it has been a long cold winter) …they can still smell the smoke…
    They complainted to the landlord. My lease does not state that it is a smoke free unit.

    I would greatly appreciate information regarding this situation.

    Hout Bay
    Cape Town
    South Africa

    • paddocks
      November 9, 2013

      Hi Margie, just because your landlord has received the complaint, doesn’t mean you are in any danger of being evicted. It’s unlikely that there are any rules prohibiting smoking within sections in the scheme, so the residents below would need to prove that you are causing a real nuisance before you and your husband would potentially be in breach of any of the provisions of the Sectional Titles Act.

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This entry was posted on June 27, 2013 by in Legal, People and tagged , , .

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