On Tuesday 14 November 2023, the Queensland Government passed new body corporate laws. The new laws will commence on a date yet to be announced, which is likely to be in early 2024.
One of the major reforms relates to the treatment of smoking in strata schemes.
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Smoking in strata has been an issue for decades, and the government has finally decided what to do about it.
The issue has always been how they regulate an activity that is otherwise lawful, because smoking, whether you like it or not, is still legal.
But the reality is that when you smoke inside an apartment complex, you’re exposing other people to that smoke. That has been the issue for government through this whole process.
The new laws about smoking in strata encompass two things:
The first is that they’ve extended the definition of ‘nuisance’ to include someone who regularly smokes or is regularly exposed to smoking.
Previously, the statutory test, which was confirmed in a case called Norbury versus Hogan, said for smoking to be a nuisance, it had to effectively be a chain smoker sitting beside you in your unit, which is obviously very difficult to prove and also not necessarily that common in today’s society.
By extending the definition of nuisance to be regular, they’ve created a new standard that people can take advantage of to stop people smoking if they’re exposed to smoking that is regular. Of course, the test—and this is where lawyers make their money—is what ‘regular’ actually means.
So that’s there for everyone, regardless of what the body corporate does with its by-laws.
The other thing that the government has created is the ability for bodies corporate to create by-laws that prohibit smoking on common property and smoking on the outdoor area of a lot like a balcony or a patio. At the moment, by-laws can’t be prohibitory in nature, but they’ve made a specific exception in relation to smoking.
For bodies corporate they’ve got a choice. The nuisance provisions are there, no matter what; smoking provisions can relate to common property or outdoor areas of a lot, and that’s something that needs to be passed by special resolution.
The other thing that’s slightly different with this is that the laws are retrospective.
If you’ve got a no-smoking by-law now that complies with the new laws, then that by-law is going to be valid, which is pretty unique in a strata context.
These new laws change the game, and many existing by-laws will now be out-of-date.
Hynes Legal offers a free review of your by-laws to ensure they are relevant and enforceable, find out more here.
If you need help, just reach out.