Smoking in apartment buildings can lead to disputes because smoke drifts between neighbouring homes. Queensland rules allow bodies corporate to restrict smoking in some areas, but the restriction must be made through valid by-laws and apply to the appropriate parts of the scheme.
Can a body corporate ban smoking in Queensland?
The answer depends on where the restriction would apply.
The Body Corporate and Community Management Act 1997 (BCCM Act) allows a community titles scheme to make a by-law that prohibits or restricts smoking or inhaling some or all smoking products in:
- all or part of common property
- certain body corporate assets
- outdoor areas of a lot
- outdoor common property or body corporate assets used under an exclusive use by-law.
Outdoor areas can include a balcony, courtyard, patio or verandah.
A body corporate may therefore be able to prohibit smoking on a balcony or another outdoor private area, even though that area forms part of a lot. The legislation does not allow a by-law to restrict or prohibit smoking inside the enclosed part of a lot.
A complete ban across every part of every lot would not be valid. The restriction must distinguish between enclosed private areas, outdoor private areas and common property.
Section 180(3) of the BCCM Act also says that if a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use. By-laws must also be reasonable, having regard to the interests of owners and occupiers and the use of common property.
Where can a body corporate restrict smoking?
A smoking by-law can apply to common property that is not subject to an exclusive use by-law. It can also apply to some body corporate assets and outdoor areas that are part of a lot or used under an exclusive use arrangement.
This may include:
- shared walkways and gardens
- outdoor recreational areas
- balconies
- courtyards
- patios
- verandahs.
Check the exact wording and area covered against the registered by-laws and the plan for the scheme. A body corporate can only make by-laws about matters allowed under the BCCM Act. A by-law that is inconsistent with the Act or another Act is invalid to the extent of that inconsistency.
A body corporate can make by-laws to control and manage common property, body corporate assets, services and facilities, and the use of lots. New or amended by-laws generally require a special resolution at a general meeting, followed by registration of the updated community management statement with Titles Queensland. The new by-law starts when the registrar records that statement, unless the by-law sets a later date.
What counts as smoke nuisance or unreasonable interference?
An occupier or guest must not cause a nuisance or hazard by smoking. A breach can occur when a person regularly uses a smoking product on a lot or common property and regularly exposes another occupier, their guest or a person lawfully on common property to the smoke or emission.
Smoke drift from a balcony, patio or other outdoor area may become a body corporate issue when it regularly affects another home or common area.
Owners, occupiers and their guests must not use a lot or common property in a way that:
- causes a nuisance or hazard
- unreasonably interferes with another lot’s use or enjoyment
- unreasonably interferes with the use or enjoyment of common property by someone who is lawfully there.
A single instance of smoke drift will not necessarily result in a breach. Information about when the smoking occurs, where the smoke travels and how regularly it affects other residents can help the committee assess the situation.
How can your body corporate regulate smoking through by-laws?
Start by reviewing the registered by-laws. The current rules may already regulate smoking, or they may include a broader nuisance provision that applies to smoke drift.
If a new or amended smoking by-law is needed, the body corporate should:
- Identify the parts of the scheme the proposed rule will cover.
- Check whether those areas are common property, part of a lot or subject to exclusive use.
- Draft the restriction so it does not apply to an enclosed part of a lot.
- Consider whether the wording is reasonable and consistent with the BCCM Act.
- Put the proposed change to the required general meeting resolution.
- Register the new community management statement with Titles Queensland.
A by-law may prohibit or restrict smoking in the areas allowed by the legislation. Applying a restriction to an outdoor area does not, by itself, make the by-law oppressive or unreasonable.
The body corporate’s recorded by-laws continue to apply unless and until an adjudicator decides that a by-law is invalid. The committee should therefore carefully draft and check the current registered document before taking enforcement action.
By-law drafting can involve complex procedures. The committee should consider obtaining appropriate assistance where the proposed wording affects private outdoor areas, exclusive use areas or the boundary between a lot and common property. You can also read our guide to by-laws explained.
What should owners and residents do about smoke drift?
Friendly communication is usually the best first step. A neighbour may not realise that cigarette smoke is drifting from their balcony into another home.
If you are affected by smoke drift, consider:
- speaking with the neighbour calmly
- explaining when and where the smoke enters your home
- asking whether smoking can occur in a different location or at different times
- keeping a written record of repeated incidents
- checking the registered by-laws
- raising the issue with the committee or body corporate manager.
A written record can show whether the behaviour is repeated and ongoing. It may also help the committee understand where and when the smoke occurs and how it affects others.
If you smoke, consider how smoke travels between balconies, windows and outdoor areas. Smoking may still create a nuisance or unreasonable interference where it is not prohibited in a particular location.
How can smoking disputes be resolved?
The person affected should try to resolve a nuisance or hazard directly with the other person before taking formal dispute resolution steps. Communication should preferably be in writing, and documenting the behaviour may provide useful evidence later.
If the issue concerns a breach of a registered by-law, the body corporate is responsible for enforcing its own by-laws. An owner or occupier can ask the body corporate to act against another owner or occupier.
The usual process may include:
- an informal request to stop or change the behaviour
- a BCCM Form 1 notice to the body corporate from an owner or occupier asking it to act
- a contravention notice from the body corporate to the person believed to be breaching the by-law
- conciliation if the issue remains unresolved.
If a body corporate receives a proper request from an owner or occupier, the committee has 14 days to advise whether a contravention notice has been issued. If the body corporate does not respond or issue a notice, the complainant may be able to apply for conciliation, provided the required self-resolution steps have been taken.
A continuing contravention notice can be used where a breach is likely to continue. A future contravention notice can be used where a breach is likely to be repeated. These notices must identify the relevant by-law and explain the conduct involved.
In special circumstances, an urgent dispute resolution application may be possible without the usual preliminary steps. This can apply where the conduct creates a risk to health or safety or causes a serious nuisance, among other circumstances.
For more information about the broader process, see resolving disputes in a body corporate community.
What should tenants know about smoking rules?
Tenants must comply with the body corporate’s by-laws. They should receive a copy of those by-laws when they start their lease, or they can ask their landlord for a copy.
A tenant can ask the landlord, letting agent, body corporate manager or committee secretary who to contact about a body corporate issue. Requests to the body corporate should be made in writing.
If a tenant is alleged to have breached a by-law, the body corporate can enforce the by-law against the tenant. The lot owner must also receive a copy of the tenant’s contravention notice at the same time.
Tenants affected by smoke drift can follow the same practical steps as owners. These include checking the by-laws, communicating with the other resident and asking the body corporate to address an ongoing breach. The dispute resolution process available may depend on how the body corporate is registered.
Queensland body corporate by-laws can restrict smoking in common property and outdoor private areas, but cannot restrict smoking in the enclosed part of a lot. If you need help reviewing a smoking by-law or managing a smoke-drift dispute, contact our team at reception@stratacare.com.au.
