No Smoking By-Laws in Strata Schemes – How Far Can They Go?

No Smoking By-Laws in Strata Schemes – How Far Can They Go?

The starting point is the decision of Salerno v Proprietors of Strata Plan No 42724 (1997) 8 BPR 15457 where the Supreme Court of New South Wales considered the issue of whether the “smoking within any lot” restriction in the strata by-law contravened the then section 58(6) of the Strata Titles Act 1973.

The lot owner argued that the no smoking by-law prevented the leasing of the lots for uses that involved smoking (such as a club), thereby restricting the leasing capabilities of the lots.

The Supreme Court held that the by-law did not directly restrict the leasing of the lots, as the by-law was directed at behaviour within the lot and not at the types of lessees that may lease the lot. Accordingly, as the by-law did not contravene section 58(6) of the Strata Titles Act 1973 (NSW) the by-law was found to be valid.

The position in New South Wales is that a no smoking by-law which has been drafted to address smoke-related nuisance within a scheme is likely to be upheld by the Courts and the Tribunal.

Here is a sample no smoking by-law Sample No Smoking By-Law

If you require any assistance drafting a no smoking by-law, please contact Michael Pobi of our office on (02) 8710 3430.

Please note that the information contained in this article is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely on it.