Smoking near others has stirred up quite a bit of debate.

Laws around Australia are progressively restricting smoking in places that might affect others more and more.

As a result, smoking in strata buildings creates an inevitable opportunity for conflict.

In this article, we’ll discuss some of the major topics around smoking in strata buildings.

The Starting Point – What do the By-Laws Say?

There is no standing law or rule that says you cannot smoke in your own apartment in a strata building.

Of course, if the rules were that simple, this would be a very short article and the answer would be plain.

However, things are rarely as straightforward as the general proposition suggests.

The real question when it comes to smoking in your apartment or anywhere else inside a strata building is this: what do the by-laws say?

An owners corporation is well within its rights to set reasonable restrictions on smoking in the apartments of the owners or around the common property. Many strata buildings have by-laws in place that prevent owners from smoking in various places or situations.

And the Laws of Nuisance…

Beyond the application of the by-laws, there will always be a question about whether the smoking habits of an owner or occupier are causing a nuisance to others in the building.

Allowing tobacco smoke (or other potentially hazardous substances) to drift from your apartment to that of others is, potentially, a nuisance that the Tribunal will take action to prevent.

That’s going to be a case-by-case assessment, but even if a by-law does not prohibit smoking, it needs to be considered in light of the closeness of your apartment to others and the potential impact it might have on them.

Typical By-Laws About Smoking

While the phrasing will vary, there are a few fairly standard options for by-laws when it comes to prohibiting smoking:

1. Do not smoke on common property – this type of clause might permit smoking inside your own apartment but not in the general areas of the building.
2. Ensure that smoking on the lot does not penetrate to the common property or other lots – this slightly more troublesome clause seeks to protect others from secondary smoke or unwanted smell from smoking. It is also very practically difficult to comply with if you are a smoker.
3. Only smoke in designated areas – this clause is drafted more positively in that it provides a definite area you CAN smoke rather than trying to restrict your other activities.

You will see these principles in the two options set out in the model by-laws when it comes to smoking.

These basic principles can be chopped and changed a bit, but generally speaking most smoking provisions in by-laws revolve around these concepts.

If We Prohibit Smoke-drift to Common Property, What Counts as Common Property?

If you are considering the above options, or wondering whether smoking might breach a by-law, one question that could well come up is this: if I am not allowed to let smoke drift onto “common property”, then what counts as common property?

To many, “common property” is the phrase used for things like lobbies, elevators, stairwells and the like.

However, a more accurate description of common property when it comes to strata is “everything that isn’t a lot”.

So, strictly speaking the common property includes the gap between your walls and those of your neighbours, or the area between your floor and the ceiling of those underneath you, or the airspace between your balcony and someone else’s.

So if your strata building’s smoking by-laws prohibit you from allowing smoke to drift onto “common property”, it’s going to be a much harder obligation to meet than many people might believe.

What Happens if I smoke even if the By-Laws forbid it?

Breaching your owners corporation’s by-laws is generally not a great plan.

Generally speaking, you would expect a warning before any more serious action was taken.

However, residents breaching any by-law run the risk that the owners corporation might apply to NCAT for a civil penalty.

If a penalty was imposed, it could be up to $1,100 for a first offence, and if you’re back within 12 months it could be up to $2,200.

If the Tribunal orders you to stop smoking and you continue to do so, then you could get a much heavier penalty of up to $11,000.

So in all – it’s not really worth it.

What if there Aren’t Any By-Laws about Smoking and I Want Some?

Some strata buildings will not have any by-laws about smoking, often just because the by-laws are old and have not been updated in some time.

If you are a lot owner, it is open to you to propose a by-law to the owners corporation. If you are uncertain about its contents, then basing it on the model laws we have linked above is a good start, or otherwise getting some specific advice from strata lawyers to ensure it does what you are hoping to achieve.

The by-law would need to be passed by a special resolution at a general meeting before it took effect.

What if My Neighbour Smokes and they Shouldn’t Be?

Ideally, a polite conversation with your neighbour is the best place to start.

If that conversation does not go well, or you are concerned it might become a conflict, then you might need to encourage the owners corporation to take action instead.

In that case, probably the best thing to do is to first collect evidence of the days, times and incidences of what you believe are smoking incidents.

Naturally we are not encouraging you to stalk your neighbours, but having a documented record of the breaches of the by-laws will only help in the long run.

How detailed and how long those records need to be is going to depend on how clear-cut the breach is.

From there, you would ideally go to your owners corporation and request they issue the offender lot owner with a notice to comply.

Should the owner then fail to stop, the owners corporation may be able to take further action in NCAT to compel compliance with the by-laws.

Need Help?

If your by-laws need an update to deal with smoking, or you need help enforcing existing by-laws, don’t hesitate to reach out to our strata lawyers who will be happy to help you.