Smoking can be a contentious activity in apartment buildings, sometimes leading to disputes between residents about unpleasant odours and hazards to health.

Often smokers who don’t want to smoke inside their own homes go out to the balcony for a puff, which may seem to be a reasonable solution on the face of it. But smoke rises and can curl its way into the homes of nearby residents, some of whom may consider it an infringement of their right to clean air and a safe environment.

Until recently, affected residents had little option to do anything about their tobacco addicted neighbours; after all, a person’s home is their castle, right? They can do whatever they like in it.

Well, that may not be the case much longer because, in a surprise decision, the Body Corporate Commissioner recently upheld a complaint by the neighbour of a chain-smoker living just below her in the same apartment block. The adjudicator accepted the owner’s argument that second-hand smoke is a health hazard.

This, says Chris Irons[i], the immediate former Body Corporate Commissioner, is a ground-breaking decision.

The Body Corporate Commissioner considers disputes between owners and bodies corporate, and parties can potentially get a legally binding order from the office.

In the case of the chain-smoking resident, an aggrieved unit owner lodged a series of complaints with their body corporate, but the body corporate did not take any action.

Dissatisfied with that outcome, the owner took the matter to the Body Corporate Commissioner’s Office. An adjudicator in the Commissioner’s office has, in turn, made the ruling to uphold the complaint and ban the smoker from smoking any tobacco products on their balcony.

Domain reported today that “the adjudicator stated that “owners and occupiers within a community titles scheme do not have unfettered rights” and are bound by body corporate by-laws.”

“While the ruling only applies to this particular circumstance, it actually now sets a new threshold if you like – not a precedent – but it certainly now sets the standard,” Mr Irons told The Westender.

New South Wales[ii] has recently strengthened by-laws concerning balcony smoking in strata title dwellings, Mr Irons said. In Queensland, issues are managed through by-laws that regulate how residents conduct themselves in their building, such as parking and noise.

Mr Irons said given the legitimate concerns people have about second-hand smoke the Queensland Government has been looking at the issue for many years. But a body corporate cannot prohibit smoking at the moment.

“So what’s happened, is that while the Government has still been thinking about it, the adjudicator has gone ahead and made a call which has opened the floodgates, basically, for people to pursue it themselves,” Mr Irons said.

“Effectively what’s happened is the owner has been told what they can and can’t do in the confines of their property. And that’s not something that we have seen before.”

Time for the Government to take action

Mr Irons says that the ball is now back in the Government’s court.

“It’s potentially changed a lot of things around smoking, and it’s time for the Government to step in and offer some clarity. And the clarity that I and many others would like to see, is the ability for a body corporate to decide to ban smoking, just by a vote, like anything else that happens in the body corporate – if you have the numbers, you win.”

What do you think?

There is an estimated 61 apartment buildings and 3486 units, and an additional 26-unit blocks with 7309 units, in the suburb of West End, so this issue will likely have some resonance locally.

Let us know what you think – should body corps be able to ban owners from smoking on their balconies?


  [i] Chris Irons is a body corporate consultant and Senior Vice President of the Strata Community Association (Qld)

[ii] Smoking is not banned in all strata schemes in NSW. However, occupants must not create a nuisance or hazard or stop others from enjoying the strata complex. If Smoking is offending someone, the smoker could be taken to the NSW Civil and Administrative Tribunal and penalised.

Cover image, Shutterstock