This Q&A answers questions from our audience about the controversial topic of smoking in NSW strata buildings.
Table of Contents:
- 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?
- QUESTION: We have a by-law stating residents are permitted to smoke on common property. This came about as one lot owner wanted the by-law and no-one challenged him at the time. I am strongly against the by-law and want to know how I can get this smoking bylaw changed.
- QUESTION: Our smoking bylaw states ‘No smoking in all common areas AND No Smoking inside your own apartment’. Is this bylaw legal in NSW and if not can it be removed?
- QUESTION: How do we handle the other duplex lot owners who smoke outside their lot. Smoke drifts over the dividing fence and into my ageing father’s lot.
- QUESTION: For the last few months, the tenant in the apartment above ours regularly sits and has a smoke on the balcony. Their smoking causes smoke drift into our flat each time they smoke on the balcony. What can we do?
- QUESTION: I finally managed to get a copy of the by-laws for my building and we don’t have a ‘smoking bylaw’. Does this mean people are free to smoke throughout the building?
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:
- 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
- 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
- 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.
- 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.
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.
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.
Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440
This post appears in Strata News #522.
Question: We have a by-law stating residents are permitted to smoke on common property. This came about as one lot owner wanted the by-law and no-one challenged him at the time. I am strongly against the by-law and want to know how I can get this smoking bylaw changed.
Answer: The by-law may be invalid or of no force or effect to the extent that it conflicts with other smoking law.
A by-law cannot overrule the provisions about smoking not causing a nuisance under section 153 of the Strata Schemes Management Act 2015 and those rights are enforceable in NCAT. The by-law may also be invalid or of no force or effect to the extent it conflicts with other smoking law referred to below.
Please see some helpful links:
- NSW: Last Gasp For Smokers in Strata
- Strata Schemes Management Act 2015 No 50 – 153 Owners, occupiers and other persons not to create nuisance
Feel free to email me directly at [email protected] if you want to engage us and get some advice to assist you with your by-law problem.
David Bannerman
Bannermans Lawyers
E: [email protected]
P: 02 9929 0226
This post appears in Strata News #376.
Question: Our smoking bylaw states ‘No smoking in all common areas AND No Smoking inside your own apartment’. Is this bylaw legal in NSW and if not can it be removed?
We live in a high rise apt block and a few years ago we voted against a no smoking building, but we are not allowed to smoke in all common areas.
Our building has a reasonably large amount of tenanted apartments. Most residents are unaware of the Bylaw stating ‘No smoking in all common areas AND No Smoking inside your own apartment’.
The bylaw clearly states that Owners, tenants, or friends are not allowed to smoke inside your own apartment under any circumstances.
Is this bylaw legal in NSW and if not can it be removed?
Answer: The by-law could be construed as “harsh” or “oppressive”.
The smoking provisions of the strata legislation relate to the “nuisance” that is caused by smoke drift and the new Schedule 3 by-laws restrict smoke penetration to lot and common property.
We have not seen a blanket prohibition on smoking anywhere on lot or common property challenged or upheld. The by-law could be construed as “harsh” or “oppressive” and invalidated on that basis ie that it is harsh that smoking is prohibited within a lot provided that smoke does not escape.
Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440
This post appears in Strata News #376.
Question: How do we handle the other duplex lot owners who smoke outside their lot. Smoke drifts over the dividing fence and into my ageing father’s lot.
We are looking for information about how to handle the other lot owners who smoke in the back yard of their duplex. The smoke drifts over the dividing fence into my ageing father’s lot. The neighbours smoke in an area that is roughly 3m away from his back door and bedroom. This is particularly an issue as he is on the dust disease register.
We have tried NCAT but the matter was rejected in the Administrative Tribunal.
Answer: Smoking could be construed as a trespass, a private nuisance and constitute a violation of your father’s right to quiet enjoyment of his property.
On the assumption you do not wish to further pursue your rights through NCAT, depending on the strength of your evidence, smoking could be construed as a trespass, a private nuisance and constitute a violation of your father’s right to quiet enjoyment of his property.
Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440
This post appears in Strata News #353.
Question: For the last few months, the tenant in the apartment above ours regularly sits and has a smoke on the balcony. Their smoking causes smoke drift into our flat each time they smoke on the balcony. What can we do?
For the last few months, the tenant in the apartment above ours regularly sits and smokes on the balcony.
Their smoking causes smoke drift into our flat each time they smoke on the balcony. We know it’s them because we hear their sliding door and can see their reflection in the windows of the opposite building.
During the day and evening, we like to have our balcony door and bedroom windows open to allow fresh air to circulate and find that we are needing to close these every time the tenant has a smoke on the balcony (which can be in the 10’s during the weekend days). Are residents in NSW apartment buildings allowed to smoke on their balcony?
I am also an asthmatic whose asthma is triggered by smoke and therefore find this to be a wider health issue and nuisance and would like to know what we can do.
Answer: We do not know whether your building has the smoke drift by-law, we confirm that the legislation virtually regulates same.
While we do not know whether your building has the smoke drift by-law, we confirm that the legislation virtually regulates same – see highlighted section below:
153 Owners, occupiers and other persons not to create nuisance
- An owner, mortgagee or covenant chargee 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
- 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
- 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.
Note: 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.
- 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.
Seeking orders from NCAT
You may wish to seek orders from NCAT to prohibit the smokers from smoking (mediation must first be attempted), or you might wish to request that the Owners Corporation pass a non-smoking or smoke-drift by-law.
Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440
This post appears in Strata News #182.
Question: I finally managed to get a copy of the by-laws for my building and we don’t have ‘smoking bylaws’. Does this mean people are free to smoke throughout the building?
I live in an apartment block in Sydney, NSW. The block is new and I was one of the first to move in three months ago. As more of the apartments have become inhabited, people have started smoking in the common areas. This includes the ground floor foyer, corridors on the upper floors and even in the lift. Is this allowed under strata laws?
I have read the information on the model by-laws, which as I understand are guidelines and not legislation, so owners corporations can set their own by-laws. I finally managed to get a copy of the by-laws for my building and there aren’t any ‘smoking bylaws’ – nothing in there regarding smoking. Does this lack of smoking bylaws mean people are free to smoke throughout the building?
And if so, what can we do to make our building a smoke free apartment building?
Answer: A model bylaw regarding nuisance would either have to be adopted at registration if a new scheme or by the owners corporation at a later time.
Sounds like a horrible situation if people are smoking not just outdoors and in their lots but in areas such as the lift.
I note that:
There’s a model smoking bylaw regarding nuisance smoking – see below – this would either have to be adopted at registration if a new scheme or by the owners corporation at a later time.
The cancer council has great resources on smoking and useful smoking bylaws within apartments blocks – Achieving Smoke Free Apartment Living
Even without a specific by-law, smoking in such a way as described will generally fall under the definition of ‘nuisance’ and give rise for an occupant to take action under this section against the owners/owners corporation – SECT 153 Owners, occupiers and other persons not to create nuisance
9 SMOKE PENETRATION
Note: Select option A or B. If no option is selected, option A will apply.
OPTION A
- An owner or occupier, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property.
- An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
OPTION B
- An owner or occupier of a lot, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property, except:
- in an area designated as a smoking area by the owners corporation, or
- with the written approval of the owners corporation.
- A person who is permitted under this by-law to smoke tobacco or any other substance on common property must ensure that the smoke does not penetrate to any other lot.
- An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
Andrew Terrell
Bright & Duggan
E: [email protected]
P:02 9902 7100
This post appears in Strata News #167.
We know this is quite an issue in strata. Have a question or something to add about smoking in strata buildings, please leave a comment below.
Read next:
- NSW Strata Reforms: Enforcing By-laws by Issuing Notices to Comply
- NSW Q&A: How Do I Stop Cigarette Butts Litter from Neighbours Upstairs?
- NSW: Is Smoking a Nuisance?
- Cancer Council NSW: Landlord ordered to compensate tenant because of smoking neighbour – May 2021
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
After the latest information about smoking in strata buildings or other articles about NSW strata legilsation? Visit Strata Smoking OR NSW Strata Legislation.
Looking for strata information concerning your state? For state-specific strata information, take a look here.
Are you not sure about some of the strata terms used in this article? Take a look at our NSW Strata Glossary to help with your understanding.
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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
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.