Buildings heading smoke free

September 1, 2015

Australian property has taken another small step toward a smoke free future for buildings with the NSW Government recently amending their Smoke-free Environment Act to ban smoking in outdoor eating areas and within a place that is within 4 metres of a pedestrian access point to a licensed premises or restaurant.

 

This will have an impact on mixed use properties in NSW with those having a bar or restaurant downstairs no longer having smokers cause annoyance to residents living above with this change but these legislative changes are the first steps toward what appears to be smoke free buildings.

 

Laws being changed along these lines will now work to compliment by-laws which have been in place in some corporations in NSW with maximum fines for non-compliance of $1100.

 

The smoking within properties that casues a nuisance may be covered under South Australian legislation as a breach of the loose and vague wording within the Strata Titles Act “interfering with others in relation to the enjoyment of their rights in using their property”.  By-laws and articles that detail specific policies are ensuring that it is explicitly clear what the expectations of the corporation are and how these will be managed.

 

Although in most properties smokers and non-smokers co-exist without issues, over the years our managers have had multiple properties where smoking has caused issues for residents.

 

Where issues arise in a body corporate, the body corporate manager should get to know the problem, the layout of the property and any other specific matters causing the issue at the property and then assist the owners to use the legislation to pass a change to the by-laws or articles for the corporation where the corporation has voted for such a matter to be investigated and resolutions composed.

 

A change of by-laws for a Community Corporation requires a special resolution.  A special resolution is one where the full text of the proposed motion is listed on the agenda giving all owners 14 days’ notice of the meeting.  At the meeting the motion is passed by having a quorum in attendance either in person or by proxy, more voting for than against and those voting against not exceeding 25% of the total number of owners who could attend and vote.

 

Some corporations have acknowledged their issues and passed no smoking by-laws while others have created designated smoking areas which when coupled with by-law/article changes can lead to positive behaviours being exhibited by all living within the property. 

 

It is important to consider what the right policy is for the property in question rather than just adopt a ‘blanket policy’ as any policy can impact upon the viability of a property as an investment by impacting upon future renters and purchasers who would be bound by such a policy.

 

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