Smokers can freely light up in rental properties even if their tenancy agreement has a "no smoking inside" clause, a Tenancy Tribunal decision suggests.
The recently released decision casts doubt on the legal enforceability of such conditions, which industry professionals say are commonly used by private landlords and professional property managers throughout the country.
The unsuccessful applicant in the Queenstown case said the issue remained a "grey area" of the law.
Despite being repeatedly asked to stop smoking inside her apartment, the tenant persisted, Ms Scott said.
Neighbouring owners in the 78-unit building complained the smell of smoke was entering their apartments through the ventilation system.
"There was no other option but to go through this process.
"The body corporate kept coming back to us, and the neighbours kept coming back to us, complaining about it."
Although the tenancy agreement had a clause stating the tenant could not smoke inside, the tribunal dismissed the trust’s application on the grounds that prohibiting smoking was inconsistent with the tenant’s responsibilities under section 40 of the Residential Tenancies Act.
"Smoking is not unlawful," the tribunal adjudicator said.
"I am not satisfied the prohibition on smoking in the tenancy agreement should be permitted."
The adjudicator also dismissed the trust’s claim the tenant had breached the building’s body corporate rules, and said the woman’s apartment was not part of its common property.
Ms Scott said the trust was not looking to appeal the decision at this stage.
However, the issue was especially pertinent to apartment buildings with internal ventilation systems.
Toro Apartment’s body corporate had subsequently amended its rules to extend its prohibition on smoking or vaping from common areas to include residential units as well.
Despite the decision, the trust still expected that tenants in its rental programmes to not smoke inside their homes.
"We want to be a fair and reasonable landlord, and give our households a home they can make their own, but we think smoking inside is a step too far."
The tenant remained in her apartment, but there was a possibility she could be relocated to another of the trust’s rental properties, in about 12 months’ time, where smoking would not impact neighbours, Ms Scott said.
The ODT has approached government department Tenancy Services for comment.
