When you live in a strata scheme, normally in an apartment or townhouse, you agree to share common property with your neighbours. However, does this mean you have to put up with your neighbours smoking on the balcony below you?
The rules about how you and your neighbours use your apartment or townhouse and the common property are governed by the strata scheme’s by-laws and the Strata Schemes Management Act 2015 No 50 (the Act).
Under section 153 of the Act, an occupier of a lot in a strata scheme must not use their lot in a manner that causes a nuisance or hazard to the other occupiers nor can they unreasonably interfere with other occupiers’ use of their lot.
In a recent case , a neighbour was smoking 20-40 cigarettes a day on their balcony with the cigarette smoke drifting up to the neighbouring balcony. The NSW Civil and Administrative Tribunal determined that the neighbour’s smoking on the balcony below was a nuisance and amounted to a substantial and unreasonable interference with another occupier’s use of their lot.
The exposure to actual discomfort, disease and a potentially serious health risk was considered beyond the give and take required of occupiers in a strata scheme. It was also considered a hazard because there is no safe level of second hand smoke.
The case is a timely reminder that while there is a certain level of give and take required when living in a strata scheme, you are still entitled to use and enjoy your apartment or townhouse free from nuisance and interference by your neighbours.
Pittman v Newport [2022] NSWCATCD 173
If you are experiencing issues with your neighbours and you have tried to resolve it without success, please contact our office on 02 4350 3333 or email enquiries@aubreybrown.com.au and our staff can assist.
