As can happen in any shared living environment, there is always the risk of someone’s actions becoming a problem for another resident in a strata property. One common complaint we hear about from residents is to do with smoking on balconies. A resident’s upstairs neighbour may be throwing their cigarette butts or flicking ash from their balcony, or even dumping the contents of their ashtrays into what they think is the garden below. The problem is, for the unfortunate resident living underneath this can lead to cigarette butts, ash and other litter regularly posing an annoying and potentially dangerous problem. What can you do about this?
Dealing with litter and other unwanted items on common property
Section 153 of the NSW Strata Schemes Management Act 2015 states that:
An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
(b) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
(c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
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While these sentences may seem a bit of a mouthful, they mean that litter, rubbish and cigarette butts being dropped from an upstairs balcony can be deemed a nuisance and therefore a breach of the by-laws – if your strata scheme has these by-laws in place. Any unwanted items on common property can pose a problem, but cigarette butts hold the added risk of starting a fire if they are not extinguished and as such can pose a hazard to other users. Drifting cigarette smoke has also been included within possible nuisances within the recent strata legislation changes of 2016.
If you are finding this is a problem for you, the best thing to do is to politely ask your neighbour whether they can cease the behaviour, as they may not realise they’re causing the problem. You may next be able to apply to your strata committee via the strata manager to issue warning notices and a Notice to Comply with a By-Law, which can be further escalated to the NSW Civil and Administrative Tribunal (NCAT) for a penalty if the problem persists.
If the strata committee is unable to resolve the problem, you are entitled to apply for mediation through NSW Fair Trading as an owner or renter. Failing a solution via this process, the next step would be to apply to NCAT to seek an order that the behaviour cease. We find that in many cases, clear communication can mean that the problem is cleared up well before this step.
