Site icon JFM Law

Is smoking in apartments allowed?

Is smoking in apartments allowed?

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:

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.

For more information regarding strata by-laws, contact JFM Law on (02) 9199 8597 or email us.

 

The information contained in this post is current at the date of editing – 12 October 2023.

Exit mobile version