I live in a very cohesive, cooperative block of grand old apartments in the Eastern Suburbs.
We all get on, no problems at all, except …

1 of the apartments is let; lovely family, but the mother of the tenant comes to stay for extended periods as does the brother of the tenant.

And mother and brother are chain smokers.

Our building is rock solid; double brick, high ceilings, etc. Etc., but still, in the common area, seeping out somehow from the tenants apartment comes the smell of cigarette smoke.

The do smoke on their terrace too, clearly seen are the overflowing ashtrays, which doesn’t seem to present too much of a problem to me, who happens to be the one living above them. But in truth I think that if they were forced indoors it would increase the volume on the carcinogenic fumes permeating our common area.

So, in our case, I prefer them outside.

I am completely at a loss to understand why all smoking is not banned in units, both within units and on common property. If anyone is interested, there are some interesting cases on the NSW Cancer Council site. Food for thought for the 80% of the population who choose not to smoke yet regularly subjected to smoke drift. Passive smoking means that innocent ‘smokers’ inhale unfiltered smoke. This is a diabolical invasion of another’s rights on the part of smokers.

Currently, I reside in a building where I am affected by smoke drift, previously from one resident (since given up) and by another who hasn’t (except when she has a new boyfriend). It means that I cannot relax in my own place, as I have to be on the alert constantly for smoke (very stressful). If I relax, I am liable to find my place suddenly full of smoke. At times it is so bad, the only option is to leave windows & doors open & turn on the fans full blast, and wait. Keeping windows closed is not an option in the summer, and I am often woken in the middle of the night by cigarette smoke drifting into my bedroom, also first thing in the morning (if I don’t wake in time to close my window for the regular 7.15am smoke). I just want to go to bed at night with my window open knowing that I am not going to wake up to a bedroom full of smoke.

I have put this matter before one of the offenders, to no avail. I don’t have a leg to stand on under current laws, and given the threat to my health, I am liable to be without healthy lungs very shortly. I plan to move.

And hurrah to Jimmy Thomson for mentioning the foul smelling Aussie icon – the ubiquitous barbeque. I wonder how many people are forced to close all their windows in the peak of summer while neighbours (often more than one) are turning on a smoke feast. Charred meat is carcinogenic, so the eaters will suffer, while the neighbours sweat it out inside their homes with all windows shut.

It’s time to wake up to both these matters that affect those who choose not to smoke or burn food. The NSW government needs to get its finger out and fix the legislation.

I agree with Mary, it’s almost the same with me. The smoke drift comes up onto my balcony and through the back of the kitchen cupboards. So I am on constant alert to close my windows and door which is not good especially in summer. And then there is the early morning smoke that mixes with my cup of tea if I am not quick. I don’t agree why 80% of us should have to adjust our living arrangements for a minority. If you want to smoke please keep it in your home or apartment. I also wonder how much of our Medicare Levy is being used for smoking-related illness.
Thanks for making this a public discussion matter.

Having lived in a strata unit since 2005 on the fifth floor of a six storey block, I wish to comment -

Our 30 year old block has never allowed barbecues on the balconies but that doesn’t mean there hasn’t been the odd illegal barbecue. The offending smell permeates far, and certainly upwards, therefore making regulations specific to floors totally useless.

I cannot think of the topic I would disagree on with Flat Chat, since I started to read this column a few summers ago.
Fully applaud your effort Re BBQ-s and Smoking on the Strata, and strongly believe that a rightful majority will bring this matter to the successfull end.
Keep up the good work, Jimmy! Thank you,

Stan

I refer to your article in SMH Saturday April 4 2009. We own a small unit with a small balcony in a holiday area north of Sydney. Our Residents’ Committee have banned barbeques on the balconies but the Strata Manager has advised that nothing can be done about smoking on the balconies.

When sitting on our balcony at times we cannot escape the odour/fumes of smoking of the adjoining rental unit. The owners of this rental unit do not allow smoking inside the unit and were under the impression that it also extended to the balcony but tenants smoke on the balcony. We have found it too unpleasant to sit on our balcony whilst some tenants are smoking on the adjoining balcony. A few months ago two women sat for hours using hokkiien smoking pipes which emitted a sweet smelling odour. They also had a male visitor who smoked a cigar on the balcony. We did try to politely speak to the ladies about the effect on us from these smoking pipes but they said that they “were there for a holiday, had paid a lot of money to rent the unit, we should just put up with it and if we did not like it we should go”.

We cannot understand how smoking can be banned in some locations but nothing can be done when it affects your enjoyment/health in your own property.

Yes, I couldn’t agree more re the banning of smoking in strata units.

I am at the end of my tether due to smoking on the balcony below my unit. The smoke permeates both my living room and my kitchen which has a window adjacent to the balcony and even through to the bedroom on the opposite side of the building. There is NO way of stopping this invasion. Even if I sit with all windows and the balcony door shut, the gaps around them allow the smoke to penetrate, especially in windy conditions. I have fans trained on the windows to try to push the smoke back out. Diane and Mary have my sympathy as I well understand the terrible stress of being on constant alert.

Unfortunately, I am in poor health and suffer from chemical sensitivity problems. When exposed to the smallest amount of tobacco smoke I develop an extremely painful reaction of the lips, palate and tongue which takes up to two days to subside. The stinging and inflammation of my mouth can be severe enough to prevent sleep. I have politely told my neighbour (who has lived below me for ten years and with whom I have previously had a very good relationship )about my problem and the extent of my distress. Her boyfriend is the source of the smoking, and she has responded by telling me it is her “right” to have visitors smoke on the balcony – and this, as things currently stand, is true. She will not allow smoking inside her unit and, of course, smoke travels upwards, so it ends up in my unit instead of hers.

I find it extraordinary that I am protected from tobacco smoke in shops, offices and multiple other public places and yet I have no protection inside the supposed sanctuary of my own home. I am forced to smoke!

It looks as if I am going to have to leave the home I love and have lived in for twelve years.

How is it that 2 building managers spend alot of their shift smoking on common property in the front of the building even when there are ‘no smoking’signs.

One Owner made a complaint and the Contractor who employs these building managers said he has no control over his staff smoking?

I believe if the Owners have resolved that the common area is non smoking the Contractor is in breach and should have control over where they smoke not whether they are smokers.

JimmyT Writes: Just another example of how strata buildings are often run to suit the building manager rather than the residents. I’d say that was a clear breach of contract – they have admitted that they can’t control their employees and prevent them from breaching by-laws. Get rid of the lot of them and hire a building manager who actually wants to manage.

Hi All

Like you folk I have problems with smokers. It is a lovely building in a lovely area, however 3 out of the 12 units have smokers in them that affect the rest of tenants in a significant way.

I think it is RIDICULOUS that any unit block should allow smoking as there is NO way to smoke in a unit without it affecting the other people in the units.

I am interested in getting a campaign going to change the laws so that by default no smoking is allowed in unit blocks.

If anyone is interested in helping please email
passivenomore@gmail.com

In particular a lawyer that can help us pro bono would be great – I can help get a website built and some media coverage – with a team effort, I think we can really get this done. There is already legal precedent, see

So I don’t think it is too big a leap to get smoking banned – I respect people’s choice to smoke, I just want them to respect my choice not to smoke – passively or actively.

Please email me if you want to help – let us become the change people.

I live in NSW.

Kevin – passivenomore@gmail.com

Hi!

I have heard that by-laws have been passed that deal with smoke drift in apartments. Does anybody out there have a sample NSW by-law that I could propose at the next AGM?
JimmyT writes: Here is the catch-all by-law from my building – item (c) is the one you might want to include in yours.
3 Your behaviour
3.1 You must not:
(a) make noise or behave in a wav that might unreasonably interfere with the use and enjoyment of a Lot or Common Property by another owner or occupier;
(b) use language or behave in a way that might offend or embarrass another owner or occupier or their visitors;
(c) smoke cigarettes cigars or pipes while you are on Common Property or allow smoke from them or from a barbecue to enter Common Property or another Lot;
(d) obstruct the legal use of Common Property by any person;
(e) do anything in the building that is illegal; or
(f) do anything that might damage the good reputation of the building.

Hi All

I have set-up a Facebook group to try and gather support to put pressure on lawmakers to address the issue of smoke drift in apartments.

Please join CLICK HERE and get your friends to join.

If we get hundreds of thousands of members the lawmakers will take note.

Thanks.
Kevin

Hi Jim,
I am in the process of trying to have an upstairs appartment to be fully sealed as their cig smoke and pot smoke is coming through the electrical system and is ruining my food in the kitchen cupboards.

I will be taking the matter to court so stay tuned.

Regards June

Some of the comments here have said something to the effect of “but legally there’s nothing we can do to stop the smokers”.

However Section 117 of the Strata Schemes Management Act prohibits tennants causing “a nuisance or hazard to others in the building”.

Surely this can be used when the smoke is causing a nuisance and a hazard. The DOFT says it can.

Not sure if it’s been fully tested though.

Jimmyt writes: There has been at least one case where the smokers were told to mstop smoking or move out (which they did) because their smoke was travelling to another unit. That said, the legal definition of ‘nuisance’ is very different from something that’s annoying.

It would definitely be worth either getting official legal advice or testing the law.

Strata Schemes Management Act 1996

117 Owners, occupiers and other persons not to create nuisance
(1) An owner, mortgagee or covenant chargee in possession (whether
in person or not), lessee or occupier of a lot must not:
use or enjoy the lot, or permit the lot to be used or enjoyed,
in such a manner or for such a purpose as to cause 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 such a manner or for
such a purpose as to interfere 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 such a manner or for
such a purpose as to interfere 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.

and

RESIDENTIAL TENANCIES ACT 1987 – SECT 23
Use of premises by tenant
23 Use of premises by tenant

(1) It is a term of every residential tenancy agreement that:
(a) the tenant shall not use the residential premises, or cause or permit the premises to be used, for any illegal purpose,
(b) the tenant shall not cause or permit a nuisance, and
(c) the tenant shall not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant.

Yes there probably is some weird definition of “nuisance”, but I figure carcinogenic cigarette smoke is both a nuisance and a hazard, so the argument should carry some weight.

Anyone out there with experience of having these laws tested? Or access to official legal advice?

It would be good to know if we can use these existing laws.

Scotto

Good to see this thread is still alive.

I to have trouble with smoke coming into our unit to the point that we sometimes sleep in our living room just so we can at least have a window open in summer. The smoke is often so bad in our bedroom that it can smell as bad as a pub (or at least when people smoked in pubs) – not joking.

Being on the Executive Committee I did get a letter sent to owners / renters, Our Strata Manager put it under “nuisance” – of course did not help. My next step is to make a By-Law that the block be “Non Smoking” (can that be done, does anybody know?).

Anyway, we are very concerned as we have a baby due in 6 months and are just not sure we will be able to continue living there. Pretty hard as we have fully renovated our unit and love the location, but what can you do.

Kevin – have your details and will certainly be joining your Facebook group…

JimmyT writes: If your neighbours have ignored a warning letter your EC should now issue a “Notice To Comply” which carries the threat of a $550 fine. You can’t stop people smoking in their own homes but you can create by-laws that, for instance, forbid them from allowing smoke to pass from their lots on to common property and/or other units. You may well have these by-laws in your building already.

June Bakos -

I will be very interested to read on this site (if not in law reports) of your outcome – we live on the top floor of a block of three – 1930S building, seems solid enough but to our horror:

* cigarette smoke constantly permeates – seemingly though the walls, there are no open windows or vents

*strong curry cooking smells from the bottom floor – it is as if they have an extractor fan that empties into our apartment. A lot of it inexplicably comes into my daughters bedroom at the back of the building, nowhere near the kitchen.

*recently, marijuana smells coming through.

Both floors below us smoke so it would not be possible to say where it is coming from. The cooking comes from level 1. They are all revolting and offensive smells.

We are going to address it at the next meeting but expect resistance – I mean, I can hardly ask people to stop cooking. As for the smoking I am worried that we will simply be outnumbered. It seems to me that someone – a joiner or someone – will need to come round to examine the wooden joinery and seal it I suppose, but I cannot afford to pay for extensive work to be done so I was hoping it was a strata issue as the smell literally seems to come through the walls and floors.
JimmyT writes: If the smoke is a nuisance then it is a strata issue. Check your by-laws and then ask that they be enforced. If the Owners Corporation or EC refuses to act, you can take a complaint to Fair Trading (Tel 13 32 20).

6/11/2006: Smoking has been legally declared a “nuisance” under NSW strata title law, with a decision by the Consumer, Trader and Tenancy Tribunal in the “Highgate” case authorising a North Sydney owners’ corporation to prevent tenants smoking in their unit where the smoke drifts into other units or common areas. There has been no appeal against the decision, rendering similar actions likely to succeed.
JimmyT writes: Michael, you are mostly right and we have highlighted this particular case many times before (by the way Highgate is in The Rocks, not North Sydney). Some lawyers say that the fact that there wasn’t an appeal rejected by the Supreme Court means that it’s not a legal precedent … yet. However, it is very encouraging for Owners and ECs that have a smoke problem and means the efforts to prevent “nuisance” smoke are more likely to succeed than not.

I own an investment unit and have been notified by the owner/occupier in the unit above about the offensive cigarette smoke drift from within my unit. This disturbs me because an extra condition I had added to my Residential Tenancy Agreement was that the tenant would not smoke. This was signed a number of years ago by the tenant on taking up the lease. My managing agent sent a letter asking them to comply with this agreement a year ago, but this seems to have been ignored.

Does the fact that they have signed such an agreement and have been sent a warning letter by the managing agent allow the EC to issue them with a letter of non compliance, or does EC have to issue a warning letter itself first? Do I have grounds to give the tenants 14 days’ notice because they have continued to break a tenancy agreement, even after being warned?

If EC does issue a letter of compliance and they still smoke, how do you fine them $550?

I have only just moved into a unit (2 weeks) and now discover that the neighbours cigarette smoke (and yukky masking perfume) is a huge problem. When i inspected the flat I assumed the stale smell of smoke was from the previous tenant. Wrong. Initially I thought the smoke was coming from the outside but after much trial and error with windows and towels under doors etc I believe it is coming through the walls, ceiling, or fittings.

I sent an email to both the Landlord and estate agent 3 days ago and hace had no reply!!!

My suggestion: lift the ban on the import and sale of chewing tobacco.
It’s an even more filthy habit than smoking (requiring spittoons and a good aim), but at least the filth is restricted to the addicted person, and unlike smoke, the smell is contained.

It seems to me that the problem will only get worse in the context of potential restrictions on smoking in certain public places. The only place a smoker has a right to smoke is in his or her private home. But when the smoke from that activity filters into someone else’s property, the latter person has to put up with it or go through absolute legal hoops.

My own smoking problem (people in apartment below; smoke infiltrates our apartment through joinery) has not been resolved: at the strata meeting they were sympathetic but said it was the price we had to pay for ‘living with people’. The strata would not pick up the cost of having our place sealed, and we can’t afford it, so we are stuck, either move or put up with it.