The NSW Civil and 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 permeated by smoke from a smoker downstairs was unsuitable for habitation.

This is an important case because the landlord was liable for compensation even though the ‘nuisance’ was not caused by any fault of his own.

The unit that was the subject of these proceedings was above a unit tenanted by an elderly and ill chain-smoker. The tenant experienced a strong 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 was the landlord’s responsibility to rent a liveable residence and he was liable for not providing that.

While people may believe others are entitled to smoke within their own lot, strata schemes can introduce by-laws to prohibit smoking. There was no by-law prohibiting smoking within lots in this strata scheme, making it difficult to take action against the chain-smoking tenant. The Owners Corporation declined to intervene, and the owner of the unit below did not want to evict the elderly tenant. Reforms to the Strata Schemes Management Act, expected to take effect in mid-2016, have acknowledged that third party smoke is a nuisance to other residents, with the new model by-laws including a by-law addressing smoke penetration.

This case was considered under the Residential Tenancies Act 2010, which limits available penalties to $15,000 for matters of this type. The case is significant as a landlord has not previously been fined for not providing a healthy living environment due to third party actions under the Act. If the matter was brought by a lot owner against another lot owner, it may have been brought under the Strata Schemes Management Act 1996, which limits penalties to 5 penalty units for an order and 50 for enforcing an order (one penalty unit is currently $110.00).

In this case, it was found the landlord had made reasonable attempts to resolve the issue, but ‘reasonable attempts’ were not enough.

If you are concerned about similar exposure to risk as a landlord (as well as the negative affect on health), it may be a good idea to propose a by-law that addresses smoke penetration in your strata scheme. Also open to the landlord were other ways of mitigating the situation, such as if the smoke was travelling due to faults in the common property, action could have been taken against the Owners Corporation for failure to repair the faults, or even a claim under the Strata Schemes Management Act 1996 against the owner or tenant producing the smoke.

Both lot owners and executive committees should be aware of the potential consequences if they do not take steps to protect residents’ health.

The full judgement of the dismissed appeal that confirmed the judgment can be found at:

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