The question of whether owners and tenants are allowed smoking in their apartments is a major point of dispute amongst tenants, and a contentious topic. In Australia, NSW is the only jurisdiction which addresses this issue in law.
What are my options?
In November 2016, NSW Strata Schemes Management Regulation 2016 introduced model by-laws with respect to smoking in strata buildings under by-law 9. The options they provide are as follows:
- That an owner or occupier or any invitee of the owner or occupier must not smoke tobacco or any other substance on common property, and any tobacco or other substance smoked on the lot must not penetrate to common property or any other lot;
- That smokers must not smoke tobacco or any other substance anywhere on common property except in a designated smoking area set by the owners corporation or with the written approval of the owners
- That smokers may smoke on their lot but must ensure the smoke does not penetrate to common property or another lot.
Smoking in apartments as a nuisance or hazard
The owners corporation may adopt such rules or adopt their own smoking by-laws to restrict smoking.
S 153 of the Strata Schemes Management Act 2015 states that:
“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.”
While this does not expressly prohibit smoke drift, the Act allows for smoke restrictions without by-laws. The occupant must not create a nuisance or hazard which interferes with others, and if smoking acts as a nuisance to someone, they may be in violation of the relevant by-law.
What if the by-laws are breached?
In case of a breach, the owners corporation may issue a Notice to Comply, followed by a potential application lodged to NCAT in pursuit of civil penalties for repeat incidents. The legislation can impose a fine up to $1,100 for the first breach, followed by $2,200 for a second breach if occurring within 12 months.