Smoking Bans from the Old Days of Strata Title
Salerno -v- Proprietors of Strata Plan No. 42724 (1997) 8 BPR 15
GoStrata’s CaseWatch is a short, sharp and easy-to-understand review of important and interesting Court and Tribunal decisions affecting Australian strata title stakeholders.
Quick Read
This 1997 NSW Supreme Court decision is about a dispute over a by law banning smoking in a mixed use Sydney CBD strata title building. A strata owner of commercial lots wanted to rent them to a club that had smoking areas, so challenged the validity of the by law on the basis of s 58(6) which restricted what strata by laws could do. After considering the standard strata laws, the smoking ban by laws and some other recent cases about by laws, the NSW Supreme Court decided that the smoking ban by law was permissible and valid. The decision was part of a series of Court cases in the 1990s and 2000s extending strata by law making powers. But, since then the approach taken in strata title and society generally over smoking has changed and decisions like Cooper’s Case have altered the approach taken to strata by law validity by Courts to invalidate many kinds of blanket bans.
Implications
The key implications of this strata case are as follows.
Standard strata by laws included controls on activities inside strata lots.
Those by law controls restricted the number and kinds of potential buyers, renters, etc.
S 58(6) applied to formal property transactions only, and not the commerciality of those transactions.
The smoking ban by law did not prevent a lease or other property transaction even if it limited potential renters of strata lots.