Smokers keep your smoke out of my space!
Did you know only 12% of Victoria’s adult population smoke. That leaves the rest of the population trying to avoid second hand smoke.
Luckily for non smokers the model rules for Owners Corporations was changed in 2021 in an effort to address smoke drift in apartments.
What’s the rule?
1.4 Smoke penetration
A lot owner or occupier in a multi-level development must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
What do you do if there is a problem?
If a lot owner you can make a complaint to your Owners Corporation about the person. The Owners Corporation should follow the dispute resolution process.
Ultimately if the matter is not resolved, next stop is the VCAT seeking an order about the smoke.
But does VCAT actually do anything?
Yes, in orders made in July 2024 in the matter of Moravski v Giazis and another (VCAT OC1595/2023) the Tribunal made the following orders in response to a complaint about smoking in an apartment against both the tenant and the lot owner:
- The First Respondent for so long as she resides at the Unit must not smoke any tobacco or other substance on the balcony of the Unit and must not permit any other person to do so.
- The Second Respondent for so long as they are the registered proprietor of the Unit must ensure that no smoke caused by the smoking of tobacco or any other substance in the Unit penetrates the adjoining lot.
What do you need to prove?
You need to prove that smoke is penetrating into common property or a lot, this is normally through the balcony or through ventilation. Sometimes it can also go down the hallway and under the door.
It also needs to be more than a once off issue.
What’s the catch?
It can take a while to go through the VCAT process and get a determination. There may be little relief during that period. Other alternatives should be pursued where cost effective. That may mean installing door stoppers and other improvements to prevent the smoke drift between lots.
What role does the Owners Corporation have?
Owners Corporations should assist with the dispute resolution process and take steps to that are reasonable to help prevent smoke drift between common property and private lot space. If smoke is entering common property they should consider taking action against the lot owner for the benefit of all lot owners.
What other remedies can be sought?
It’s possible to obtain an order for damages but there is no scope for damages for “pain and suffering”.
A civil penalty up to $1100 can be sought by the Owners Corporation for a breach of the rules. However I am not aware of such a penalty being imposed on any person. I understand VCAT has order a civil penalty once, for $100 (when the Act capped the amount at $250) and that was for conduct relating to music being too loud and the occupier turning the volume up again after they turned it down at the request of Police.
Senior member Vassie in 2017 said “the imposition of a civil penalty is a serious matter that should only be contemplated when there has been a failure to comply with a Tribunal order that a person refrain from breaching a rule or when there has been a more than usually serious breach of a rule.“
Given the changes in 2021, we are of the view that the attitude of the Tribunal should be different and they should be more willing to impose a civil penalty. However, we will need to wait for a decision.
Need advice or assistance in a VCAT case?
Contact Phillip Leaman who heads the Owners Corporations team at Tisher Liner FC Law. We have extensive experience in prosecuting and defending VCAT applications. See our website for information and useful guides for Owners Corporations and their committees and managers.
