NSW: Incense smoke drift in apartments: Is it a strata nuisance?

This article discusses incense smoke strata nuisance by explaining that ongoing incense smoke drift in apartments may be treated as a nuisance under strata law and addressed through mediation or formal action.

Question: My new neighbours in the unit above uses incense in their unit every day. The smell fills up my unit and in the public passageway. What legal rights do I have? Is it all right to get the police involved?

Answer: BBQ smoke, cigarette smoke and possibly incense smoke drift could potentially be construed a as nuisance.

The nuisance provisions of the Strata Schemes Management Act, 2015 (NSW) could potentially apply to your situation. BBQ smoke, cigarette smoke and possibly incense smoke drift could potentially be construed a as nuisance.

Section 153:

1. An owner, mortgagee or covenant charge in possession, tenant or occupier of a lot in a strata scheme must not:

   1. 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
   2. 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
   3. 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.

Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.

2. This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of section 82 of the Strata Schemes Development Act 2015.

Division 1 of Part 6 contains provisions about the circumstances in which owners of lots may carry out work that affects common property.

We recommend approaching your neighbour in a friendly manner first. If the “nuisance” continues you could apply for Mediation through NSW Fair Trading.

This post appears in Strata News #522.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440