Quick Guide: Smoking in Strata

The government-commissioned QUT review of property law has asked Queenslanders to give their feedback on smoking in strata schemes. Interest in the topic was sparked after findings indicated that smoke drift from balconies or courtyards can settle in adjoining units and townhouses. The second-hand smoke forces neighbouring residents to close their doors and windows to avoid it. A property owner has certain rights to do as they please in their home but they also have a duty of care not to cause nuisance to their neighbours. Currently it is difficult for bodies corporate to restrict smoking on balconies without a by-law and it is also questionable whether such a by-law might be unreasonable or repressive to residents who smoke. If you are affected by smoke drift from a neighbouring resident, the first step is to politely and directly address them about it. A direct approach is often appreciated and will resonate better than a written notice or a call from the body corporate. Residents who smoke may not always be aware that their smoking is affecting others and are often happy to negotiate a solution, whether that be changing the time or location of where they smoke. Below we have provided the current rules and regulations regarding smoking in strata schemes:

• Nothing in legislation prohibits smoking within the boundaries of an owner’s/residents lot
• Bodies corporate should check the plans of the scheme to determine if the balcony/courtyard of an apartment forms part of the lot
• No ruling from an Adjudicator has supported the restriction of smoking within a lot by a body corporate
• Bodies corporate should however make all efforts to inform owners/residents when their smoking is affecting others
• Bodies corporate can restrict smoking on the common property with an appropriate by-law.

This article was contributed by Wayne Hewitt, Partner at Archers the Strata Professionals. Wayne has been heavily involved in the strata industry since 2008 and has previously spent a number of years working as a Property Manager. He has extensive experience managing medium to large schemes, which are governed under various Body Corporate modules.