Question: Can owners do a letter drop to remind residents of our smoking by-law and the ramifications of allowing smoke drift from cigarettes and other substances?
The anti-smoking by-law regarding smoke drift is hard to enforce. Owner-occupiers in our unit block asked our committee and owners corporation (OC) to send out reminder letters about the issue, especially regarding smoke drift. Our OC has a by-law about smoke penetration, including the mention of “other substances” that can be vapes or incense.
Our committee and owners corporation are not interested in addressing this matter, but as the smoke drift is especially detrimental to one owner with heart and respiratory problems, can owners do a letter drop to remind residents of the by-law and ramifications of allowing smoke to penetrate other units? We have a few new residents who may not be aware of the impact.
Answer: This action may lead to conversations about the matter and potentially even some action.
There is absolutely no difficulty with doing a letterbox drop and circulating a generic (that is a circular non-specific to any person) to all owners/occupants reminding them about:
- Your strata scheme’s by-law; and
- The “nuisance” provisions in the legislation, for example, pursuant to Section 153 of the Strata Schemes Management Act 2015.
It is possible that in doing this, you may create something of a “stir”, but it may also lead to some conversation in relation to the matter and potentially even some action.
This post appears in the May 2025 edition of The NSW Strata Magazine.
Warwick van Ede
JS Mueller & Co Lawyers
E. warwickvanede@muellers.com.au
P: 02 9562 1266
Hi there,
We live in a complex building in Tweed Heads West, NSW.
The tenants below us are heavy smokers. Until recently, they smoked on their balcony from very early until late during the day.
We approached the Property Manager, and she (the Property Manager) talked to the tenants. The Property Manager and I have exchanged several emails and phone conversations regarding the issue.
The tenants are no longer smoking on their balcony. However, they are now smoking in the underground parking. The smoke caused by smoking cigarettes drifts to the common parking.
I emailed the Property Manager on Thursday, 4 May, as the heavy smoke woke me up at 3:13 am.
Later, on Friday, 5 May 2023, during a phone conversation, The Property Manager suggested we make a Witness Statement the next time we see them smoking.
Today, I witnessed one of the tenants smoking in the garage and emailed the Property Manager a Witness Statement.
The event happened when I accompanied three visitors to the garage so they could drive out. Those three visitors witnessed the above and can give written testimony of what happened if necessary.
Besides the nuisance and hazard caused by the smoking tenants, we are now facing the fact that one of the smoking tenants has confronted us in person.
I walked to the automatic garage door, tapped the key on the garage keypad and let my visitors out. As I was walking back, past the smoking tenant’s car park, towards the entrance to the stairs, the smoking tenant approached me. She stated, “We have not smoked on the balcony since the Property Manager talked to us. What you are doing is harassment”. I responded, “If you believe what I am doing is illegal, use the legal tools available. I have nothing to talk to you about”, and walked away.
We now want to access the legal advice and take the actions available.
We look forward to hearing from you soon.
Kind regards
Hi
We suggest you watch the recent recording involving a similar situation in a NSW strata building. You can view the video here: NSW: How to Stop Cigarette Smoke From Entering Your Apartment
We have a problem at [our] Strata Village where an owner has 2 smokers in her block of 4 units and she is not coping with this. Attempts to S/C and Village Manager are not helping her at all. It seems it is in the 2 hard basket and yet we have a bylaw that says that smokers must smoke inside their unit only or a designated area.
What other options does she have to help her with this situation.
Hi Margaret
In this video, Brenton Pittman details the process they followed when faced with a smoke drift issue: How to Stop Cigarette Smoke From Entering Your Apartment
As there are bylaws in place, you can read all about issuing breach notices here: NSW: Q&A Issuing and Enforcing a Notices to Comply with a By Law
We also have a webinar coming up all about NSW Bylaw Breaches. You can register for the free webinar here: NSW: Bylaw breaches – The step-by-step guide to enforcement
Smoke is an issue in our large rural SP.
It isn’t cigarette smoke, it is wood fire smoke. Once winter kicks in and a large number of the 115 lots fire up their wood heaters there decenes a haze of smoke that permeates through the whole SP.
How would the OCN balance the needs of [staying warm] v the nuisance that need causes for other residents inside their lots?
We often see a STOP SMOKING notice on our front chalkboard in reference to this issue.
Section 153: An owner, mortgagee or covenant charge in possession, tenant or occupier of a lot in a strata scheme must not:
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 ….
I think if agents and briefs are going to bandy this section about then they need to qualify what nuisance is.
It doesn’t matter a ordinary person thinks it is, it matters what the Courts have said it is.
The difference can be quite dramatic.
Are resident above allowed to use spitter pipes to continually drain water into ground floor units.
This has happened to myself.
The unit was continually issued breached notices then finally ordered to remove their plants.
Ten months later they started again.
Committee Chairman was dishonest when I sought his assistance. He claimed it rainwater.
A video was emailed to strata..
It finally stopped and my pavers turned white.
Requested a building inspector ×2.
Was told no by the committe as the pavers were in my court yard and my responsibility.
Told strata I’d have to go to fair trading.
Next thing the committee researches our Strata Managers contract .
The contract expires in about six weeks.
The Committee vote on a new Strata manager.
I’ve sent a detailed email to the new Strata Manager outlying what occurred.
He came back stating the pavers were my responsibility.
1. Is a committee member alliwed to say residents are permitted to use spitter pipes.
2. Am I responsible for another resident wilfully draining water into my courtyard and damaging my pavers.
3. How can I resolve the issue
Hi Debra
This article should assist: NSW: Q&A Water Dripping Over Balcony From the Neighbour Above
When I requested emails and documentations from the new Strata. Manager he replied he had looked through the files sent over from the old Strata Manager and there weren’t any files.
I have correspondence on my computer re the issue.
The Strata Manager is not co-operating and being honest.
Not sure what my options are now.
Debra Adsett
We have passed. Pets By-Law, the problem being the Owners Corp allows pets to walk on Common Property on a lead.
Each resident is allowed 2 pets.
This is extremely dangerous as animals on leads become. potential trip hazzards, especially on the stairs.
If an accident were to occur Strata does not cover insurances
Is there anyway it can be enforced pets must be carried on the common property
Hi All
Start doing some research and request that a no smoking policy or by law is put on the next AGM agenda for a vote. The Cancer Council NSW have a Fact Sheet on their website entitled: Smoke free By Laws: know your options. There are national and international cases where a smoke free policy has been adopted and also prevention of smoking on common property and balconies. The Cancer Council recommends a 100% smoke free policy. Passive smoking from smokedrift is dangerous. and is a nuisance. The argument posed by smokers is that you would infringe on their rights, but what of the rights of those who have smoke drifting into their apartments via cracks, ventilations shafts and from balconies. Smoking is banned in the workplace so why not everywhere els!
Several cases have been won in Australia by non smokers who have been affected by smoke in the apartments.
Start lobbying your strata council, local government etc…..the only way to change the situation is to get involved and become a non smoking advocate!
Thanks Cleo. For the help of our readers, I have linked to the resource you mention in your comment.
We also note, Cancer Council NSW also has a comprehensive toolkit packed full of other related resources: An information kit for tenants and owners in strata schemes
I live in an apartment block (for over 12 years now). I am a smoker, as is my partner. We have a large garden area (ground floor, away from the upper level balconies) in which we have smoked for those last 12 years, without a single complaints. New tenants have moved in and they like to keep their doors open 24/7 but also like to complain each and every time we have a cigarette. They’ve thrown water over my partner (sitting outside) and been both rude and abusive about the whole situation. I’d like to know, what are our rights? We’ve tried to cut down, we generally try to smoke outside the building now but as we both work very long weeks, we like to throw on our comfy attire (pjs) of a Fri/Sat night….have a glass of wine and a cigarette. We have lived here for so long and there’s never been issues till now. Our building is not a non smoking building and other people smoke also. Should I try to discuss the issue with our neighbours and offer a compromise? Would appreciate a response without being ostracised!😞
Nobody will be on your side unfortunately.
QUESTION: Who may move a motion to amend a motion? Can, for example, an owner present at the AGM, move a motion at the AGM to amend a motion put forward by the committee?
Just would like to mention that the committee can’t put forward motions. I know that might come as a surprise to many but there is no authority in the Act for the committee to do so. The Act creates a ‘class’ of person who can submit motions and typically in statutory interpretation if the statute creates a class it is to the exclusion of other classes.
There are other issues surrounding the concept the committee can include motions such as it creates an avenue for otherwise non entitled persons to get a motion on an agenda but the bottom line is there is no authority for the SC to put motions on an agenda.
The bylaw clearly states that Owners, tenants, or friends are not allowed to smoke inside your own apartment under any Circumstances.
Regrettably by-laws do not apply to visitors (friends). It is possible through a by-law to try to place responsibility for friends behaviors back onto a owner or occupier but the by-law would not apply directly to the friend.
Consider; how does the OC apply the by-law to a friend when the OC would have no idea who they are or where to serve a notice to comply to them.
As the owner has invited the friends, the penalty would apply to the owner.
An example, if I was overseas, and I had a friend minding my place, and my friend damaged the common property, it would be the owner’s fault to rectify as s/he invited the friend. It would up to the owner to seek redress from her or his friend. Not up to you to find out the details of this friend.
Hope that is clear.
Just want to mention i now have a NCAT matter where, i think it is the Dept Pres., who feels the committee can submit motions.
Of course the Member’s claim is unqualified. It seems more the case of – of course the can they are the SC.
I would still maintain they can’t.
And i qualify it with reference to Qld legislation and the circumvention of other parts of the Act that allowing it can result in.
Hi All,
I have emailed to Strata management three times about the strong toxic smoke in my apartment since 20 Mar 20. I have been waiting them the response. Building manager Colin came to my home to check the smoke on 5 June and sent a handyman Bob to replace seals for my windows and doors. Both Colin and Bob smelled the strong toxic passive smoke in my home from my apartment below and could not suffer for it. However, I suffer, struggle and stress for the strong toxic passive smoke in my home every day.
I live in level 12. A Chain-smoking person is living in my apartment below level 11. He smokes from earlier morning until at night after 1:45 am. Sometimes he smokes at 3:30 am or 5:30 am. After replaced the new seals for my windows and doors, I still smelled the toxic passive smoke. Every day the toxic passive smoke drift stay in my home for longer hours. I cannot sleep and my throat is very uncomfortable and sometime I cough a lot. Especially COVID-19 impacts, I need to stay at home longer time for Coronavirus pandemic. However, the toxic second-hand smoke is made my home unliveable.
In our building, high percentage of residents are tenants from overseas. They are overseas students or working visa holders. They smoke a lot and until mid-night. The passive smoke drift are also from another apartment. I close all my windows and doors and turn on my new Air Purifier in the strong button but the strong toxic smell still get into my home.
I am afraid to turn on my ceiling exhaust fan. That is because the passive smoke can get through from the exhaust fan into my home. Even though I do not turn on the exhaust fan, the passive smoke still can get in. Every night, I cannot sleep until smokers finished smoke around after 2:00 am. Then I open all my windows and doors to let the fresh air in and the passive smoke away from home during the chilly weather. But the Chain-smokers smoke again at the midnight. My apartment is full of passive smoke again. It is so frustrating.
Everyday I struggle and upset for the toxic second-hand smoke problem in my apartment. Now more people work at home as a second office. I extremely expect our apartment is a smoke-free apartment.
I believe that I am not the only one to face the toxic second-hand smoke problems in apartment. Please help us to stop the chain-smokers to cause of ill health, nuisances and hazard for us ASAP. Please set new laws to prohibit smoking in apartment so that we can enjoy our daily live in apartment.
Thank you and best regards,
YES HELEN I TO HAVE THE SAME PROBLEM.DOES ANYONE DO ANYTHING ABOUT IT AND WHERE CAN I GET CONTACT N0;
Hi Ian
This article about a recent smoking case may assist: https://www.lookupstrata.com.au/nsw-smoking-nuisance/
Hopefully the smoking prohibitions can be applied to the use of petrol powered leaf blowers – even though the SC is likely to have hired the perpetrator of this filthy, noisy and unnecessary methodology.
I’m in NSW, renting a unit and other tenants in the block smoke outside & on the balcony & the smoke drifts into my place. As I’m an asthmatic I find it very stressful. By the time I close windows & doors the smoke is inside. Do I have any rights here? I’ve contacted the agent who informs me the strata say our block doesn’t have the law to stop it. What about the new legislation introduced in NSW in 2016 about the new model by law (which must be adopted) regulating smoke drift? It offers 2 options A & B. If neither option is selected, option A will apply, stating no smoking on common property.
I relate fully to the situation of occupiers trying to enjoy their homes when smoke drift penetrates from units nearby. This situation is hazardous to health and an infringement on quiet enjoyment of our homes. In our units we have new tenants who smoke as do their visitors. This creates havoc for neighbors, who have no choice but to close doors and windows, and remain indoors or leave the premises, to avoid smoke. Strata units need a ban on all smoking, for the sake of the health and enjoyment of all residents.
Good afternoon, I’m in Queensland and I’m waiting for rhe day that cigarette smoking is banned in residential buildings. The elderly woman in the apartment below me smokes and all the units cop the smoke. It’s like a chimney effect and nobody likes it. It affects my health, too. When will something be done in every state to stop this situation?
I’ve written to Body Corporate and was advised to close my doors and put aircon on, that smokers have the right to smoke on their balconies and that I could move out.
Hello Leanne,
The Executive Committee of my strata has decided to delete the by-law regarding parking. This will cause chaos with some residents not being able to access their garages and others parking on the common property causing a third group to have to do several three point turns to both enter and exit their spots.
In your opinion is the omission of a parking by-law the same as an unjust by-law?
Restrictions on by-laws
The new strata legislation has enacted a new restriction on by-laws, namely, that a by-law cannot be unjust, harsh, unconscionable or oppressive.
I look forward to hearing from you.
Regards,
Jo Daly
Hi Jo
Thanks for your question. We have received this response back from Leanne Habib, Premium Strata:
In our view, the absence of such a by-law is not “unjust” perhaps just unwise. There is no positive requirement for an owners corporation to have a parking by-law in place, however, it sounds as though this will cause chaos in your building. Further, it also sounds unlikely that the Owners Corporation will avail itself of its powers under the regulations to have obstructing vehicles removed.
You will likely need strata specialist legal assistance with this matter as there appear to be 2 courses of action open to you – apply to NCAT to have the by-law revived or apply to NCAT for a compulsorily appointed agent (if you meet with threshold that the scheme is dysfunctional)(the latter course is a high threshold).
In addition to the above, the offending vehicles parked on the common property may be in breach of the nuisance and hazard provisions of the strata legislation. Under such legislation no owner or occupier may 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.