Smoke on the Water … Fire in the Strata

Smoking has been under fire for many years now … but people continue to puff away on their tobacco sticks, cigars and pipes.

But many places have prohibited smoking (very effectively) and the number of prohibited locations continues to grow. 

However, strata schemes remain a bastion of smoking and the smoker. 

But who knows if that will last for very much longer as there are increasing moves to try to reduce or ban smoking in strata schemes.  Not just on common property ... but also in apartments, on balconies and on terraces.

So, what’s the true position today ?

All standard form by-laws do not say anything about smoking in the strata scheme … so it’s allowed anywhere without restriction.

Of course, causing smoke and odours to enter another’s private property could be a nuisance (in the legal sense of the word as a trespass) and can therefore be stopped by legal action via injunctions.

Additionally, causing smoke and odours to enter another lot or common property could breach other more general by-laws so owners and residents could get orders from strata Tribunals and/or Courts about the other by-laws.  This has happened in a few cases in NSW.

Strata schemes can also make by-laws prohibiting smoking on common property and a number have done so.  It’s relatively easy and generally a popular idea when suggested.

Some strata schemes have also made by-laws prohibiting smoking in the lots.  And, there’s a number of court decisions upholding those by-laws as valid and enforceable (for instance Salerno's case in NSW - see Casewatch 1997.01).

So it seems that whilst smokers can mostly enjoy their vice in their apartments for now the future could be a lot more stressful and smoke(less) for them if the anti-smoking lobby finds it’s way into your strata scheme.

So, see you with a Cohiba on the balcony later whilst we can still enjoy it.

Francesco ….