This question is about smoke drift from a neighbour smoking on their apartment balcony in WA.
Question: I can’t have my doors or windows open because of my neighbour who smokes. What are my rights?
My neighbour smokes right on the boundary of our ground level units and right next to my washing. I can’t have my doors or windows open because of this smell.
What are my rights? There are plenty of other spots within their lot they could smoke in that wouldn’t affect anyone.
Answer: It may be worth seeking feedback from the other owners in the complex to see whether they would be interested in having a smoking bylaw drafted to help create more specific regulation on smoking in the scheme.
Section 83 of the Strata Titles Act 1985 requires owners or occupiers of a lot must not use, or permit the use of, the lot or common property of the strata titles scheme in a way that interferes unreasonably with the use or enjoyment of another lot or the common property by a person who is lawfully on the lot or common property.
Compliance is always a better approach than enforcement, so we recommend in the first instance it’s often a good idea to approach the offending resident from a place of respect, as they may not be aware of the impact they are having. You may be able to come to an arrangement that suits both of you for example.
Failing that, or if you feel uncomfortable with that process, you should contact your Strata Manager and/or the Council of the Strata Company. They will be able to assess the issue and decide on the best approach to help resolve the problem. If your scheme does not specifically have a bylaw that governs or regulates smoking and second-hand smoke, then you will likely be relying on Section 83 to try to manage the issue. The Strata Manager and/or the Council of the Strata Company would seek the resident’s compliance by raising the issue with them and opening a discourse with them to try and resolve the issue.
It may be worth seeking feedback from the other owners in the complex to see whether they would be interested in having a smoking bylaw drafted to help create more specific regulation on smoking in the scheme. A bylaw could prohibit smoking on common property or control where smoking may take place on Common Property, or it could be just in relation to smoke drift. A smoking bylaw would help create awareness and clarity on what the owners of the scheme feel are reasonable. This may be followed up as appropriate with no-smoking signs in certain areas, etc.
It is important to recognise whilst the Strata Company can have more direct control on what people do on Common Property, they can’t outright ban behaviour within lots (provided it’s not disruptive). Therefore, working towards an amicable solution that allows all residents to live harmoniously together should be the outcome that the Strata Company seeks.
ESM Strata
E: mchurstain@esmstrata.com.au
P: 08 9362 1166
This post appears in the September 2021 edition of The WA Strata Magazine.
Have a question about smoking on an apartment balcony in WA or something to add to the article? Leave a comment below.
Read next:
- WA: Apartment owners put clamp on smokers
- WA: How Will the New Strata Titles Legislation Affect our Council of Owners?
Visit our Strata Smoking OR Strata Information WA .
Looking for strata information concerning your state? For state-specific strata information, try here.
After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.
Some ways to take action:
Join the Strata committee
Raise a proposal for a new by law to be introduced/considered at your AGM – for no smoking or limited smoking etc
Raise residents awareness about the health hazards around smoke drift.
Check out the Cancer Council and ACOSH advice on the internet regarding smoke free strata
An apartment block in Scarborough, Perth banned balcony smoking several years ago and more to follow
This is becoming standard practice in Eastern states with No Smoking By Laws
It is a health hazard and if you start to raise awareness and push for changes you will improve the situation.
Hi
Western Australia.
I am not a smoker but shouldn’t this be addressed in Contracts before buying a Unit as is whether Pets allowed
or not when purchasing.
Bit hard to inflict a By-Law restricting animals or smoking after purchase.
Nita
Allowing chain smokers to smoke in their unit, means that when they open their unit at night, all the smoke pours out and into one’s unit, and one cannot open one’s windows or doors at night. The smoke from my neighbour who chain smokes lasts about 31/2 hrs each night. I spend a fortune on air con in the summer, because fresh air cannot enter at night, and I cannot sleep well with portable air con noise.
I live in Perth, WA. I have the same problem, the unit below me has tenants that smoke on their balcony.
Judiciously living with closed windows and doors and no fresh air is not good for me or the unit.
I am predisposed to asthma (triggered by cigarette smoke) and have now notified the strata again,
and this time will be going to my doctor who will give me written documentation which I will deliver to the strata.
I cannot believe that people’s health is being disregarded by those who have any other agenda.
The landlord in question in response to my objections tried to bring race as a reason for my issue.
Surely an inalienable right to tenants living their lives supersedes anyone who smokes? It is a universal health issue
that has been proven undeniably that it inflicts damage to themselves, others, even to affecting damage to paintwork, furnishings and other interior materials. Where is the common sense, let alone regard for the human and health of anyone?
Hi linda
Did you have any luck ??
I’m going through the exact same :/
I live in NSW and mystrata exec committee will not do anything about the smoker next to me. I have asked numerous times and they think I am a whinger. I am asthmatic, my husband gave up smoking and now I have to deal with this man who does not care an iota. I cannot open my windows or doors when he is out there so summer can be a damned nuisance. It is horrible and I feel like the strata has just brushed off the situation. I have no idea how to go about this.
Any suggestions for a NSWwelshman
Hi Sandra
We have lots of resources for other states on our FactSheet: Strata Smoking – choose the NSW tab.
You will find links to these article, plus a few more:
NSW: What are the rules around smoking in strata buildings?
Please let us know if you still have questions or require assistance.
Nikki
I hear you Welch Man .
I have a similar problem . I live in strata with
OPTION B
(3) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
The unit below constantly smokes hence penetrating my lot . I have to keep doors closed . I offered mediation to the smoker but they refused .The strata manager will not issue notice to comply as I am only person complaining . The strata manager states that the policy is 2 people need to complain for a notice to comply to be given . The strata manager stated she emailed the owners corporation about issuing a notice to comply and the vote was 6-9 not to issue as need a second complaint . I need to continue looking after myself as it can become very frustrating.
If the Strata Council and the Management are too lazy to bother to progress your issue, then you have every right to take the matter to the State Administrative Tribunal – do your research and present it. Smoking is a health hazard.
I can only sympathize with the unit owners who are inconvenienced by chain smoking neighbours on the unit balcony directly below. We have a similar problem with the same scenario – the guy in the unit below ours uses his barbeque to cook his evening meal, almost every evening. I swear he hasn’t cleaned his hot plate for ages. The choking acrid smoke rises up and engulfs our whole balcony area.