Dealing with smoke infiltration in your home

Transcription

1 Dealing with smoke infiltration in your home Contents 1. Introduction Summary The health hazards of secondhand smoke How smoke infiltration occurs Benefits of going smokefree in multi-unit housing Relevance of smokefree laws to homes Gathering evidence of smoke infiltration Owners corporation rules Rights and obligations of landlords and tenants under the RTA Rights and obligations of rooming house operators and residents under the RTA Nuisance complaints to the local council Equal Opportunity law complaints References Please note: These information sheets do not constitute legal advice and should not be relied on as such. Consider whether you or your organisation should seek legal advice tailored to your specific circumstances.

2 1. Introduction Many people in Victoria have the unpleasant and potentially harmful experience of having secondhand smoke infiltrate their homes as a result of smoking in neighbouring houses and apartments. We know this because we frequently receive phone calls from people telling us about their experiences of smoke infiltration and asking for information on what they can do about it. This information sheet is aimed at helping people to explore their best options for trying to deal with secondhand smoke infiltrating their homes. Smoke infiltration in the home is a concern because secondhand smoke exposure is a known health hazard with no safe level of exposure. It is also very unpleasant to have your home smell of tobacco smoke. Even people who smoke often report that they don t smoke inside the home. People living in multi-unit housing arrangements like privately owned apartments, public and social housing, aged care, retirement and mental health settings share spaces, infrastructure and air. In shared living arrangements there are often rules on things like pet ownership, noise, garbage disposal and the drying of laundry items that are designed to balance everyone s interests and encourage harmonious living. Unfortunately, there is sometimes a lack of rules around smoking despite the fact that secondhand smoke is both a health hazard and very unpleasant. This means that people often need to look to other avenues to try deal with smoke infiltrating their home. The information we provide is specific to Victoria and might not outline all the potential options available for dealing with smoke infiltration in the home. Cancer Council organisations in other states and territories may be able to provide information specific to their jurisdictions. The current laws around smoke infiltration in Victoria are complex. While there are a number of potential avenues for trying to address smoke infiltration in the home, it appears these avenues are not often used for this purpose. This guide has therefore been put together to help explain how various avenues of complaint may be used to deal with smoke infiltration. Quit Victoria understands that the avenues currently available to non-smoking Victorians seeking to prevent smoke infiltration are limited. We are therefore currently advocating for law reform in this area, to make it easier for Victorians to address the problem in future. Further information regarding Quit Victoria s position on the current state of the law applying to multi-unit housing, and recommended options for reform in this area can be found at: wiki.cancer.org.au/policy/position_statement_- _Addressing_amoke_infiltration_in_multi-unit_housing 2

3 2. Summary This information sheet summarises potential options for dealing with smoke infiltration in the home. These options include: Owners corporation rules for example, on health hazards or interference with use or enjoyment of apartments and common areas. Some owners corporations may also have rules specific to smoking. The Residential Tenancies Act 1997 (Vic) which gives tenants and rooming house residents the right to quiet enjoyment. Where a renter experiencing smoke infiltration has the same landlord as the person causing the smoke drift, they can request their landlord to take all reasonable steps to prevent smoke infiltration for the purpose of ensuring they have quiet enjoyment of their apartment. Rooming house rules on health hazards or smoking (if such exist). Complaints to local councils about nuisances (which includes health hazards and other things that negatively impact personal comfort). Raising discrimination issues under equal opportunity laws where a person is particularly susceptible to the harms of secondhand smoke exposure (e.g. young people, pregnant women and people experiencing respiratory illness). One or more of these options might apply to your circumstances and you will need to decide which option is best in your circumstances. In every case, if you have any concerns about negotiating with your landlord or owners corporation, you should seek legal advice. Please note: These information sheets do not constitute legal advice and should not be relied on as such. Consider whether you or your organisation should seek legal advice tailored to your specific circumstances. 3

4 3. The health hazards of secondhand smoke Quit Victoria has a detailed fact sheet on secondhand smoke, available from: Secondhand smoke, also known as environmental tobacco smoke, is made up of smoke released from the end of a burning cigarette (sidestream smoke) and smoke exhaled by the smoker (mainstream smoke). There are at least 250 chemicals in secondhand smoke that are known to be toxic and over 50 known to be carcinogenic.(1) There is no safe level of exposure to secondhand smoke.(1) Adult exposure to secondhand smoke has immediate adverse effects on the cardiovascular system and also causes coronary heart disease and lung cancer. Children exposed to secondhand smoke are at an increased risk of sudden infant death syndrome (SIDS), respiratory infections, ear problems, and higher rates of or more severe asthma.(1) Secondhand smoke is associated with a range of other adverse health effects including chronic obstructive pulmonary disease (COPD), low birth weight, and childhood cancers such as leukaemia, brain cancer and lymphomas.(1) Compared with adults, children are particularly susceptible to the effects of secondhand smoke due to their higher breathing rates per body weight, their greater lung surface area relative to adults, and the comparative immaturity of their lungs.(2) Non-smokers with long term exposure to tobacco smoke have an estimated 20% to 30% higher risk of developing lung cancer than non-smokers who aren t exposed.(3) The majority of deaths from secondhand smoke are from heart disease.(4) (5) People with other conditions such as diabetes, high blood pressure, and vascular disease are at even greater risk from secondhand smoke exposure.(6) Any written correspondence regarding an experience of smoke infiltration in the home should emphasise that, in addition to the noticeable impacts that smoke infiltration is having, that there is no safe level of exposure to secondhand smoke. We provide some example wording below: The World Health Organization explains that scientific evidence has firmly established that there is no safe level of exposure to secondhand tobacco smoke and that there is a solid body of evidence that secondhand smoke causes serious and fatal diseases in adults and children. The US Surgeon General has stated that secondhand smoke is not a mere annoyance. It is a serious health hazard that can lead to disease and premature death in children and nonsmoking adults."(7) The evidence is clear that that there is no risk-free level of exposure to secondhand smoke, and even brief periods of exposure can cause immediate harm.(7) 4

5 4. How smoke infiltration occurs Smoke infiltration occurs where secondhand smoke enters the home from an external area. A common example is where a neighbour is smoking on their own property and the secondhand smoke enters your home. In multi-unit housing in particular, common smoke infiltration entry points can include windows, elevator shafts, shared hallways, holes in walls, pipes and electric outlets, as well as shared air spaces and ventilation systems if cigarettes are smoked outside or in neighbouring residences.(8) Smoke infiltration can also be distributed though heating and air conditioning systems.(3) The extent of smoke infiltration can be dependent on factors such as distance, ventilation,(9) temperature, wind and buoyancy between indoor and outdoor air.(10) Research demonstrates that involuntary secondhand smoke exposure can be reduced, but not eliminated, through modifications to existing units.(11) Since many factors can impact the level of smoke infiltration between individual units in shared living arrangements, smokefree policies are the most effective way to ensure that residents are not exposed.(9) 5. Benefits of going smokefree in multi-unit housing Research suggests that smokefree policies in multi-unit housing provide a number of benefits. Health, financial and other benefits of going smokefree include the following: Avoiding harmful secondhand smoke exposure: o There is evidence that smoke infiltration in buildings places people at risk of the health impacts of secondhand smoke.(9) Secondhand smoke from outdoor and partial outdoor areas may infiltrate adjacent indoor areas and affect indoor air quality in otherwise smokefree areas.(12) o The implementation of smokefree policies in multi-unit housing may encourage reductions in cigarette consumption and lead to reduced secondhand smoke exposure of residents.(13) Avoiding exposure to harmful third hand smoke (THS): o The tobacco-specific lung carcinogen NNK is present on surfaces in most homes occupied by smokers.(14) Available evidence on THS pollution of indoor environments shows that THS is ubiquitous and pervasive wherever tobacco has been smoked.(15) o There is evidence of THS accumulating in smokers homes and persisting when smokers move out, even after homes remain vacant for two months and are cleaned and prepared for new residents.(16) 5

6 Economic benefits and improved amenity: o Smokefree policies can reduce cleaning costs when properties are vacated. For example, a US report found that the mean/average smoking-related cost for cleaning an apartment inhabited by smokers was US$4,935 per unit and complete smokefree policies lowered the likelihood of incurring smoking-related costs. It was estimated that implementing statewide complete smokefree policies in California may save multi-unit housing property owners US$18,094,254 annually.(17) o Apartments occupied by smokers may take more time to sell or lease compared to apartments free from smoke odour. For example, with the presence of tobacco odour proving difficult to mask, anecdotal accounts from real estate agents in New York reveal that it can be incredibly difficult to deal with tobacco odour and properties occupied by smokers can take far longer to sell or lease.(18) US research found that property owners are more likely to think that a smokefree policy would increase the re-sale value of their unit than decrease it.(19) Reduced risk of cigarette caused fires: o Smoking is the leading cause of residential and total fire deaths in at least eight countries, including Australia. Nearly a quarter of fire deaths in Australia in occurred in fires started by cigarettes or matches. The total economic impact of these fires is conservatively estimated at $63 million each year.(5) Responding to the needs of tenants: o Smokefree laws are strongly supported by the public. In Victoria, the vast majority of people do not smoke and many smokers report making efforts to reduce others exposure to secondhand smoke by restricting smoking in the home and around children.(20, 21) 6

7 6. Relevance of smokefree laws to homes Smokefree policies and regulations for indoor workplaces and public areas are widespread in Australia; however, there are few restrictions on smoking in homes and personal living arrangements. Laws and policies differ depending on the type of housing. For example: o Private rental: homes, including those that are privately rented, are exempted from smokefree requirements under the Tobacco Act 1987 (Vic) ( Tobacco Act ), including common areas of apartment blocks. Smokefree requirements only apply if a business is also operating from a home, in which case it must be smokefree while staff, clients or other non-residents are present. However, for apartment blocks, owners corporations rules prohibit activities that are hazardous to health and that prevent lawful enjoyment of common property (see part 8). Smoke infiltration should fall within these categories, although there are currently no reported Victorian court or tribunal decisions considering the issue of smoke infiltration under owners corporations rules. o Accommodation involving staff/volunteers: All enclosed workplaces are required under the Tobacco Act to be smokefree. Many people live in accommodation that will have paid staff or volunteers present for example, public housing, community housing and aged care. These forms of housing (that have staff or volunteers present), are considered workplaces under smokefree laws and are therefore required by law to be smokefree. However, smokefree laws make an exception for personal living and sleeping areas within some forms of supported accommodation (referred to under the Tobacco Act as residential care facilities ).(22) In practice this means that all common areas of supported accommodation are legally required to be smokefree, but for many types of supported accommodation it is not a legal requirement to be smokefree within a person s bedroom or personal living area. Housing providers may have individual policies in place banning smoking in private living areas, so residents should check with their provider about whether there is a policy in place. Please note: These information sheets do not constitute legal advice and should not be relied on as such. Consider whether you or your organisation should seek legal advice tailored to your specific circumstances. 7

8 7. Gathering evidence of smoke infiltration There are no guidelines on the type of information required to prove smoke infiltration in Victoria. There are also no reported court or tribunal decisions considering this issue. You can start by keeping a diary that: shows that the smoke complained of is caused by the relevant neighbour records the frequency (date, time and duration) of the smoke infiltration describes the volume (extent, degree or intensity) of smoke entering the home or personal living space describes how the smoke interfered with the use and enjoyment of your home or personal living space (e.g. smell, physical or health effects, odour removal or cleaning, or other impact on use and enjoyment of the lot). Please note: These information sheets do not constitute legal advice and should not be relied on as such. Consider whether you or your organisation should seek legal advice tailored to your specific circumstances. 8

9 8. Owners corporation rules Summary Rights under owners corporation rules Owners and tenants of private apartments experiencing smoke infiltration can: (a) Seek to negotiate with their smoking neighbour and owners corporation to address smoke infiltration issues. (b) lodge formal complaints with their owners corporation that neighbours or their guests are using their apartments in a manner that is causing a hazard to the health of others and/or is obstructing the lawful use and enjoyment of the common property by smoking, in breach of the owners corporation rules; and/or (c) request their owners corporation to create specific rules dealing with smoking within apartments as well smoking on common property. 8.1 Relevance of smokefree laws As discussed at part 6 of this paper, any area that is considered an enclosed workplace, including areas accessible to staff must be smokefree under the Tobacco Act.(23) This would include common areas in apartment blocks that are accessible to staff e.g. paid employees of the owners corporation or (potentially) staff operating out of private apartments within the building. Private living areas that are not accessible to staff are not required under the Tobacco Act to be smokefree. Therefore, other options for dealing with smoke infiltration need to be identified. 8.2 Overview of owners corporations Apartment buildings with multiple apartment owners will have an owners corporation which is made up of all the individual apartment owners. One of the main responsibilities of owners corporations is the management of common property (which can include things like gardens, walls, stairways, pathways, driveways, lifts, foyers and fences).(24, 25) Owners corporations also deal with complaints of residents and enforce the owners corporation rules. An owners corporation can operate at five levels: (a) The owners corporation which is made up of all the lot owners.(25) (b) A committee made up of elected lot owners or proxies of lot owners.(26) Owners corporations with 13 or more lot owners must elect a committee each year with a minimum of three and maximum of 12 members. Owners 9

10 corporations with 12 lots or less can choose whether to elect a committee.(27) Resolutions of the committee have effect as a resolution of the owners corporation.(28) (c) A delegate of the owners corporation. The owners corporation can delegate many (but not all) powers to certain representatives, including the manager, chairperson, secretary, a lot owner or an employee of the owners corporation.(29) (d) A delegate of the committee. The committee may delegate its powers and functions to the committee manager or a lot owner. (e) Sub-committee: The committee may appoint sub-committees (sub-committees cannot make resolutions/decisions on behalf of the owners corporation).(30) The committee as well as delegates of both the owners corporation and committee, can exercise many (but not all) of the powers of the owners corporation.(31) For example, they cannot make rules (as rule making requires a special resolution of the owners corporation)(32) but can enforce rules.(33) When seeking to deal with smoke infiltration it might be necessary to contact the owners corporation to determine who the relevant representative is. 8.3 Steps for working with the owners corporation to address smoke infiltration Below are some suggested steps for working with your owners corporation to address smoke infiltration. Start keeping track of exposure to smoke infiltration. It is important that specific steps are taken to demonstrate exposure to smoke infiltration. See part 7, Gathering evidence of smoke infiltration. Access the owners corporation rules. o Owners corporations will either create rules themselves or adopt the Model Rules for Owners Corporations ( the model rules ) set out in the Owners Corporations Regulations 2007 (Vic). A copy of the model rules is available online at o There is no model rule specifically about smoke infiltration, but there will be general rules that are relevant to smoke infiltration. These rules are listed in Table 1 below. o If the rules have been prepared by the owners corporation and those rules do not address an issue that is included in the model rules, then the particular model rule 10

11 relevant to that issue will apply.(34, 35) Therefore, if the owners corporation rules do not address the issues noted in Table 1 below, for example, on activities causing a hazard to health, then model rule 1.1 will apply. o Table 1 provides examples of how the model owners corporations rules could apply to smoke infiltration; however, there are no reported court or tribunal decisions on smoke infiltration under the model rules so these examples do not reflect arguments that have been tested through disputes. There is a NSW tribunal decision that held that smoke infiltration caused by neighbours was a considerable interference with enjoyment of lots as well as a nuisance(36) and a more recent case that held that smoke infiltration caused a hazard to those exposed.(37) While NSW decisions are not binding on Victorian tribunals, these decisions generally support a view that smoke infiltration can potentially breach owners corporations rules relevant to health, safety and enjoyment of property. Table 1 Model rules potentially relevant to smoke infiltration Model rule 1.1 Health, safety and security of lot owners, occupiers of lots and others A lot owner or occupier must not use the lot, or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier, or user of another lot. Model rule 1.1 (or an equivalent) could potentially apply where a person is smoking in their apartment and smoke is infiltrating another apartment or the common property. Model rule 3.1(1) Use of common property An owner or occupier of a lot must not obstruct the lawful use and enjoyment of the common property by any other person entitled to use the common property. Model rule 3.1 (or an equivalent) could potentially apply where a person is smoking in the common property (such as entrances and hallways) in a manner that exposes other residents to secondhand smoke. Model rule 5.1 Behaviour of owners, occupiers and invitees on common property An owner or occupier of a lot must take all reasonable steps to ensure that guests of the owner or occupier do not behave in a manner likely to unreasonably interfere with the peaceful enjoyment of any other person entitled to use the common property. Model rule 5.1 (or an equivalent) could potentially apply where guests of an apartment owner smoke in the common property or where guests smoke within an apartment and smoke infiltrates the common property. 11

12 Seek to negotiate with the owners corporation or owners corporation committee Consumer Affairs Victoria recommends, where appropriate, discussing concerns about breaches of the rules with the person involved, the manager or the owners corporation committee.(38) The owners corporation might be able to resolve the matter by writing to, or speaking with, the people involved. As discussed in part 3, the health hazards of secondhand smoke exposure are beyond doubt and it is accepted that there is no safe level of exposure to secondhand smoke. Therefore, it should be enough to: o demonstrate that smoke infiltration is occurring; o state that secondhand smoke is a known risk to health and that there is no safe level of exposure to secondhand smoke; and o explain how the smoke infiltration is breaching the owners corporations rules and impacting you (for example, by impacting your health, or by obstructing your use and enjoyment/unreasonably interfering with your peaceful enjoyment of common property) (see Table 1 and part 7 on Gathering evidence of smoke infiltration) It might be possible to have the owners corporation rules amended to expressly ban or restrict smoking. o A tenant/occupier can informally request a member of the owners corporation to consider introducing smokefree rules or rules limiting smoking. It is also possible for a tenant/occupier to participate and vote at owners corporations meetings by acting as proxy of another lot owner (with their written consent and support of a majority of the owners corporation committee if specifically required).(39) Such an arrangement could allow a tenant/occupier to advocate for the introduction of a smokefree rule. Information on the process for making owners corporations rules is available at: o Owners corporations have statutory powers to create rules for the purpose of the control, management, administration, use or enjoyment of common property and/or lots (40) including with respect to: (a) ensuring the health, safety and security of lot owners, occupiers and visitors; and (b) changing use of lots.(41) o Among other things, any rules created by owners corporations cannot be inconsistent with the model rules or any other laws and cannot discriminate against a lot owner or occupier.(42) 12

13 o There do not appear to be any reported cases in Victoria considering the extent to which owners corporations might be able to regulate or ban smoking under the powers described above.(43) o It is possible that owners corporations in Victoria could make a rule that restricts smoking where: o it could cause a hazard to health; and/or o it obstructs lawful use and enjoyment of the common property; and/or o it causes unreasonable interference with the peaceful enjoyment of common property. Below is some suggested wording for an owners corporation rule specifically addressing smoking. As noted above, the wording of any rule created by an owners corporation must not be inconsistent with the current model rules. The below wording has therefore been drafted with this in mind. However, it is important to note that the extent to which an owners corporation in Victoria can make its own rules prohibiting or restricting smoking is not entirely clear at present. Example wording: An owner or occupier of a lot must not smoke or allow visitors to smoke in a private lot or common area where the smoke created: (a) causes a hazard to the health of others; or (b) obstructs lawful use and enjoyment of the common property; or (c) unreasonably interferes with the peaceful enjoyment of common property. o It is reasonable to expect that this kind of by-law would fall within the powers of an owners corporation because: o it would be consistent with the model rule on ensuring health, safety and security of lot owners particularly because of the known health risks of secondhand smoke. o it would not directly discriminate against lot owners and occupiers because it would apply equally to everyone. Even though a smokfree rule would only impact smokers in terms of limiting their chosen activities, such limitations would be reasonable given the known health risks of secondhand smoke exposure.(44) o Owners corporations might want to introduce a rule that seeks to ban smoking completely. This kind of rule might be within the control powers of owners corporations,(43) but this is not a certainty. Such a rule might be more open to challenge because it could possibly ban smoking in circumstances where there might 13

14 not be any risk of others being exposed to secondhand smoke (and therefore, no hazard to health ). These are legally complicated issues. o Occupants or apartment owners who do not want a rule banning or restricting smoking could seek to challenge that rule through the Victorian Civil and Administrative Tribunal (VCAT) on the grounds that the rule goes beyond the rulemaking powers of owners corporations.(45) As noted above, there are no reported court or tribunal decisions considering the validity of an owners corporation rule that specifically bans or limits smoking. If negotiations fail you can lodge a formal complaint with the owners corporation or Consumer Affairs Victoria If the issue remains unresolved, occupiers can lodge formal complaints with the owners corporation. The Owners Corporation Act 2006 (Vic) and the model rules require people wishing to make a complaint to use an approved form.(46) The owners corporation must make the form available on request and the form is also available on the Consumer Affairs website.(47) The process used for resolving the issue is set out in the model rules (or will otherwise be set out in the owners corporation rules).(48) It can include the following: o Conciliation with Consumer Affairs Victoria: It is possible to lodge a complaint directly with Consumer Affairs Victoria without first lodging a complaint with the owners corporation (however Consumer Affairs Victoria may require that attempts be made to resolve the matter privately prior to it becoming involved).(49, 50) Consumer Affairs Victoria can conduct conciliation or mediation but cannot make a binding decision on the matter.(51, 52) o Taking the matter to VCAT: It is possible for owners, occupiers, as well as the owners corporation to apply to VCAT to seek to have the matter resolved.(53) Where an owners corporation seeks to take action in VCAT, it must first follow the dispute resolution required by its rules (or the model rules).(54) 14

15 Summary Dealing with smoke infiltration through owners corporation rules It is important to seek legal advice if you have any concerns about negotiating with your landlord or the owners corporation. Below is a summary of steps you can take. A. Demonstrate exposure to smoke infiltration. There is no specific guidance on how the model rules on health hazards might operate with respect to smoke infiltration. Therefore, we suggest that, at a minimum, the process and information described in part 7 of this guide be followed. This involves keeping a written account of how and when smoke infiltration is impacting you. B. Access owners corporation rules and identify the rules most relevant to smoke infiltration. These will either be rules developed by the owners corporation or the model rules. Look for rules that either relate directly to smoking or to health hazards and the enjoyment of individual lots and common property generally. C. Discuss with your landlord and/or owners corporation how the smoke infiltration is breaching the owners corporation rules. For example, by: o impacting the health, safety and security of lot owners, occupiers or visitors; o obstructing the lawful use and enjoyment of common property (including by guests); and/or o unreasonably interfering with the peaceful enjoyment of common property. It is important to communicate that it is beyond doubt that secondhand smoke is a health hazard. Parts 3 and 7 include information that you can include when explaining this. D. Seek to amend/create rules on smoking and addressing smoke infiltration. You could try negotiate with the owners corporation on developing a rule that prohibits smoking in certain circumstances, for example, where it is likely to cause a hazard to health or impact use and enjoyment of lots and common property. E. Consider lodging a formal complaint with Consumer Affairs Victoria. Contact Consumer Affairs Victoria for further information. Please note: These information sheets do not constitute legal advice and should not be relied on as such. Consider whether you or your organisation should seek legal advice tailored to your specific circumstances. 15

16 9 Rights and obligations of landlords and tenants under the RTA Summary Rights under the Residential Tenancies Act 1997 (Vic) Rights under the Residential Tenancies Act 1997 (Vic) (RTA) apply to people living in privately rented apartments, public housing and community housing (among others). Under the RTA, landlords have a duty to take all reasonable steps to ensure that their tenant has quiet enjoyment of the rented premises. Where neighbours have the same landlord (which is usually the case with public or community housing), the quiet enjoyment duty might in some circumstances require the landlord to take all reasonable steps to prevent one of their tenants from causing a nuisance to the other. A person in these circumstances can write to their landlord informing them that they are experiencing smoke infiltration from their neighbour (who is another tenant of the landlord) which is interfering with the use and enjoyment of their apartment. Relevance of smokefree laws As discussed at part 6, any area that is considered an enclosed workplace, including areas accessible to staff, must be smoke free under the Tobacco Act.(23) This would include common areas in public and community housing accessible to staff. Private living areas that are not accessible to staff are not required under the Tobacco Act to be smokefree (except if a business is operating from a private apartment, it must be smokefree while staff, clients or other non-residents are present); therefore, other options for dealing with smoke infiltration need to be identified. Obligations of landlords under the RTA Under section 60 of the RTA, tenants have duties not to: o use or permit their apartment to be used in a way that causes a nuisance ; and o use or permit their apartment and common areas to be used in a way that causes an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises. It is up to landlords to enforce the duties to avoid a nuisance or unreasonable interference. Further, landlords have a duty under the RTA to take all reasonable steps to ensure that their tenant has quiet enjoyment of the rented premises (section 67). Therefore, where: o neighbours have the same landlord; and o that landlord fails to take reasonable steps to prevent one of the neighbours from either causing a nuisance or interfering with the reasonable peace, comfort or privacy of other neighbours this might in some circumstances result in a breach of the landlord s duty to take all reasonable steps to ensure that their tenant has quiet enjoyment of the rented premises (under s 67 of the RTA).(55) 16

17 Smoke infiltration as a nuisance or unreasonable interference These phrases are not defined under the RTA and reported Victorian court and tribunal decisions provide limited guidance on what the key considerations might be in determining whether a particular activity could constitute a nuisance or unreasonable interference. Also, there are currently no reported Victorian cases dealing with the issue of smoke infiltration as a nuisance. The phrase nuisance is generally understood to refer to activities that interfere with a person s use and enjoyment of property.(56) As discussed at part 11, it is also used under public health laws to describe issues that are dangerous to health or offensive or injurious to personal comfort.(57) Smoke infiltration between neighbours has been considered under Queensland and New South Wales strata laws on nuisance. In NSW, the Consumer, Trader and Tenancy Tribunal accepted that smoke infiltration was causing residents significant problems on the basis of what it described as informal evidence in the form of s containing complaints about cigarette smoke over different days.(36) Taking a different approach, the Queensland Civil and Administrative Tribunal held that in order to prove that smoke infiltration is causing a nuisance to neighbours, it would need to be shown that the smoke infiltration was of such a volume or frequency that it would interfere unreasonably with the life of another lot owner of ordinary sensitivity.(58) The fact that someone might be particularly sensitive to smoke infiltration is not relevant under this test. Instead, proving unreasonable interference requires objective evidence of the degree of interference to the average person including through the quantification of the volume and frequency of the smoke.(59) It is not possible to know how Victorian courts and tribunals would approach these kinds of issues and the type of evidence they might require in order to prove a nuisance under the RTA. In the meantime, part 7 of this paper provides suggestions on gathering evidence of smoke infiltration. Summary Dealing with smoke infiltration through quiet enjoyment rights It is important to seek legal advice if you have any concerns about negotiating with your landlord. Below is a summary of steps you can take. Either through a conversation or written correspondence with your landlord: A. Identify the shared landlord. The person causing the smoke infiltration must have the same landlord as the person affected by the smoke infiltration if quiet enjoyment rights are being relied on. Therefore, identify that your landlord is also the landlord of the person causing the smoke infiltration. 17

18 B. Demonstrate exposure to smoke infiltration. There is no specific guidance on how the RTA laws on nuisance and unreasonable interference apply to smoke infiltration. Therefore, we suggest that, at a minimum, the process and information described in part 7 of this guide be followed. This involves keeping a written account of how and when smoke infiltration is impacting you. C. State the hazards of secondhand smoke exposure generally. It is important to communicate that it is beyond doubt that secondhand smoke is a health hazard. Parts 3 and 7 include information that you can include when explaining this. D. Explain how the smoke infiltration is impacting you and your enjoyment of the premises. Examples include the unpleasant smell, physical or health effects, the need for odour removal or cleaning, or any other impact on the use and enjoyment of apartments and common areas. Next steps: If attempts to negotiate with the landlord are unsuccessful, seek further advice or information from: - Consumer Affairs Victoria: < - A Lawyer or housing advocate Please note: These information sheets do not constitute legal advice and should not be relied on as such. Consider whether you or your organisation should seek legal advice tailored to your specific circumstances. 10 Rights and obligations of rooming house operators and residents under the RTA Summary rooming houses Under the Residential Tenancies Act 1997 (Vic) (RTA), rooming house operators can create rules covering activities that are hazardous to health or smoking specifically. Rooming house residents can check these rules to see if smoking is covered and if not, consider suggesting that a smokefree rule be introduced. Also rooming house residents have a duty to not do anything that interferes with the proper use and enjoyment of individual rooms or shared facilities. Residents can inform rooming house operators of the fact that smoke infiltration is unreasonably interfering with their proper use and enjoyment of their room and/or other facilities because it is both a serious health hazard and unpleasant. Relevance of smokefree laws 18

19 As discussed at part 6, any area that is considered an enclosed workplace, including areas accessible to staff, must be smoke free under the Tobacco Act.(23) This would include common areas in rooming houses accessible to staff. Private living areas that are not accessible to staff are not required under the Tobacco Act to be smokefree; therefore, other options for dealing with smoke infiltration need to be identified. What are rooming houses? Rooming houses are properties that have one or more rooms available for rent within the one building. Under law, in order to be considered a rooming house, the place needs to have at least four or more occupants or be declared to be a rooming house.(60) Residents of a rooming (or boarding) house have an individual agreement with the owner/manager of the house.(61) Residents either have their own individual room or a shared room, and share communal facilities like bathrooms, kitchens, laundries and other common areas.(61, 62) Under the RTA, rooming house residents have different rights and obligations to other types of tenants. Rooming House Standards Rooming houses must comply with minimum standards set out in the Residential Tenancies (Rooming House Standards) Regulations 2012 (Vic). The standards do not currently address smoking but rules about smoking can be created by rooming house operators (see below). House rules A rooming house operator may create rules relating to the use and enjoyment of facilities and rooms.(63) Individual rooming houses may have specific rules on activities that cause a nuisance to others or that cause hazards to health. If there are no rules relevant to smoking, residents can suggest to the rooming house operator that they create rules on smoking in common areas or rooms. Rooming house operators are required to take all reasonable steps to ensure that the house rules are observed by all residents.(64) Quiet enjoyment rights and obligations Residents of rooming houses have an obligation to not do (or allow visitors to do) anything in or near the rooming house which interferes with the privacy, and peace and quiet of the other residents or their proper use and enjoyment of the rooming house.(65) There are currently no reported Victorian court or tribunal cases dealing with smoke infiltration in rooming houses. However, given the serious health risks of secondhand smoke exposure, it would be reasonable to expect that smoking could breach this rule. Further, rooming house operators have a duty to take all reasonable steps to ensure that a resident of a shared room does not do or permit anything that interferes with the privacy, peace and quiet of, or the proper use and enjoyment of the room by, other residents of the room.(66) Again, because of the significant health risks of secondhand smoke exposure, it is highly likely rooming house operators would need to prohibit smoking in shared rooms in order to comply with this duty. 19

20 Summary Dealing with smoke infiltration through rooming house rights It is important to seek legal advice if you have any concerns about negotiating with your rooming house operator. Below is a summary of steps you can take: Either through a conversation or written correspondence with your rooming house operator: A. Identify any house rules on smoking. Point to any house rules that address smoking or activities that could cause a nuisance or hazards to health (note that not all house rules will address these issues). B. Demonstrate exposure to smoke infiltration. There is no specific guidance on how the rooming house rights on privacy and enjoyment might apply to smoke infiltration. Therefore, we suggest that, at a minimum, the process and information described in part 7 of this guide be followed. This involves keeping a written account of how and when smoke infiltration is impacting you. C. State the hazards of secondhand smoke exposure generally. It is important to communicate that it is beyond doubt that secondhand smoke is a health hazard. D. Explain how the smoke infiltration is impacting you, your privacy and enjoyment of the premises. Examples include the unpleasant smell, physical or health effects, the need for odour removal or cleaning, or any other impact on the use and enjoyment of a private room or common areas. Next steps: If attempts to negotiate with you rooming house operator are unsuccessful, seek further advice or information from: - Consumer Affairs Victoria: < > - A Lawyer or housing advocate Please note: These information sheets do not constitute legal advice and should not be relied on as such. Consider whether you or your organisation should seek legal advice tailored to your specific circumstances. 20

21 11 Nuisance complaints to the local council Summary complaints to local councils Anyone experiencing smoke infiltration from a neighbour can write to their local council to inform them that they are experiencing a nuisance which includes something that is a hazard to health or negatively impacts personal comfort. This includes people who are living in stand-alone houses as well as people living in multi-unit settings. Local councils are required to investigate all nuisance complaints and to seek to remedy nuisances as far as reasonably possible. This could involve requiring neighbours not to smoke in particular places where smoke infiltration will occur and expose other neighbours to secondhand smoke. Local councils have the power to seek enforcement through the Magistrates Court where people fail to comply with their notices. Where the smoke infiltration is coming from a property that is being rented, another option may be to contact the real estate agent and landlord of that property to seek assistance in overcoming the smoke infiltration issues. Causing a nuisance is an offence The Public Health and Wellbeing Act 2008 (Vic) ( PHW Act ) makes it an offence for a person to cause a nuisance or to knowingly allow a nuisance to exist or emanate from land owned or occupied by them.(67) Nuisances are things that are, or are liable to be, dangerous to health or offensive. Offensive in this context means things that are noxious or injurious to personal comfort.(68) There are no reported court or tribunal decisions considering smoke infiltration under the PHW Act nuisance provisions. However, exposure to secondhand smoke is a known health hazard and can also heavily impact personal comfort. People can lodge complaints with their local council about nuisances and complaints must be investigated Under the PHW Act, people can complain to their local council about smoke infiltration that they believe is causing a nuisance to them.(69) Local councils are required to investigate complaints and determine whether or not they think that a nuisance exists.(69) Remember that if the local council does not consider that a nuisance exists, it will not take the matter further. Local councils have a responsibility for enforcing laws against nuisances Local councils have a duty to remedy as far as is reasonably possible all nuisances existing in their municipal district.(70) If the local council considers that a nuisance exists, it should write to the person responsible for the nuisance (or owner or occupier if that person cannot be found), setting out what the council wants done about it and the timeframe in which it must be done.(69, 71) Councils can also advise the person who made the complaint of ways to potentially settle the matter privately.(72) What happens if the local council fails to investigate the nuisance complaint? 21

22 If the local council fails to investigate the complaint within a reasonable time, the person who made the complaint can take the matter directly to the Magistrates Court.(73) If the person who made the complaint had reasonable grounds for doing so, the Magistrate can order the local council to pay the costs and expenses of the person who made the complaint (but is not required to do so).(74) Alternatively, if the Magistrate finds the complaint to be frivolous or vexatious, it can order the person who made the complaint to pay the costs and expenses of the person who has answered the complaint.(75) What can the Magistrates Court order? Where a complaint is taken to the Magistrates Court by the local council and the Magistrate considers that a nuisance exists (or is likely to recur), it can order the person to comply with what the original notice from the local council requested they do as well as require works to be carried out to prevent the nuisance from happening again.(76) Where the local council fails to investigate the complaint in a reasonable time, and the person experiencing the nuisance goes to the Magistrates Court directly, the court summon the person against who the complaint was made to appear before the court and can proceed as if the matter had been taken by the local council(77) (e.g. by making an order requiring the person to carry out works to prevent the nuisance from happening again). A person who fails to comply with an order of the Magistrates Court might be guilty of an offence and can be ordered to pay a fine.(78) What happens if the local councils investigates the complaint, but does not consider that a nuisance exists? The only circumstances in which a person can go straight to the Magistrates Court under the PHW Act about a nuisance is where the local council fails to investigate the complaint in a reasonable time.(73) If the council does investigate, and finds no nuisance, then the person who made the complaint to the council would need to pursue other options for trying to deal with the smoke infiltration.(79) This might include getting legal advice about taking court action under common law principles of private nuisance. Other options contacting the landlord of the neighbour If the neighbour causing the smoke infiltration is renting the property, consider contacting the responsible real estate agent or landlord of the property to: (a) ask whether they permit their tenants to smoke on the property; and (b) inform them of the smoke infiltration issues. As a general rule, landlords will not be responsible for nuisances caused by their tenants towards neighbours (that are not also tenants of the landlord).(80) However, landlords may nevertheless be willing to assist in finding a solution to the smoke infiltration issues. 22

23 Summary Dealing with smoke infiltration through complaints to the local council It is important to seek legal advice before deciding to take a matter to court (because if you are unsuccessful at court, you may have to pay the local council s costs and expenses).(75) Below is a summary of steps you can take: Contact your local council to determine the relevant person to lodge a nuisance complaint with. The following information should be included in written correspondence: A. Demonstrate exposure to smoke infiltration. There are no reported Victorian Magistrates Court decisions providing guidance on how the PHW Act nuisance laws operate and the types of evidence required to prove a smoke infiltration nuisance. Therefore, we suggest that, at a minimum, the process and information described in part 7 of this guide be followed. This involves keeping a written account of how and when smoke infiltration is impacting you. B. State the hazards of secondhand smoke exposure generally. It is important to communicate that it is beyond doubt that secondhand smoke is a health hazard. Parts 3 and 7 include information that you can include when explaining this. C. Explain how the smoke infiltration is impacting you, your health and enjoyment of your home. Examples include the unpleasant smell, physical or health effects, the need for odour removal or cleaning, or any other impact on the use and enjoyment of your home. Please note: These information sheets do not constitute legal advice and should not be relied on as such. Consider whether you or your organisation should seek legal advice tailored to your specific circumstances. 23