Although this case is from NSW we found it very interesting, if not a bit unfair..... What do you think?
The NSW Civil & Administrative Tribunal Appeal Panel has upheld a decision to order a landlord to pay a tenant over $11,000 in compensation, declaring a unit that was affected by smoke from a smoker in a downstairs unit was unsuitable for occupancy.
The affected unit was above a unit tenanted by an elderly and ill heavy smoker. The upstairs tenant and her child experienced the smell and presence of cigarette smoke in her home during all hours of the day. In its judgment, the Tribunal stated “It is unacceptable for a tenant and a child to live in an environment which smells of tobacco smoke, and particularly where the smoke is so strong it is causing the tenant and her child to feel unwell”. The Tribunal found it the landlord’s responsibility to rent out a liveable residence and he was liable for not providing that.
This is an interesting case because the landlord was held legally responsible even though the ‘nuisance’ was not caused by any fault of his own.
We asked Management Right’s expert Fiona Allen for her comment;
“While the tenant found some relief in this matter, owner occupiers of units generally have a harder time obtaining a solution to smoke drift coming from another unit. Why? Smoking, while regulated, is not illegal. As such, the interests of smokers and non-smokers need to be balanced.
While some schemes may have a by-law preventing smoking from individual units, such by-laws may be unenforceable as the body corporate can't unreasonably prevent an "ordinary domestic activity". In addition, while owner or occupiers can't cause a nuisance to other owners or occupiers, objectively proving "nuisance" causes significant practical challenges.
"Smoke drift", along with parking and pets have all been identified as issues which cause significant practical concerns in bodies corporate. Identifying solutions however is more elusive.”
To read the entire case - https://www.caselaw.nsw.gov.au/decision/56208edae4b01392a2cd1ca0