Smoking in Apartments – What Are The Rules?

In general, Smoking in apartments has become a decisive issue in recent years. A 2022-23 survey shows 11.1% of adults within Victoria are smokers.

The Tobacco Act has undergone numerous reforms over the years to introduce tougher controls on tobacco and e-cigarette display, advertising, and sales, as well as the places where smoking and vaping is banned. Legislation regulating the sale and advertising of tobacco and e-cigarette products, and prohibiting smoking and vaping in certain areas, has continued to contribute to the decline of smoking rates in Victoria and to a growing awareness of the harm associated with smoking, vaping, second-hand smoke, and the aerosol from e-cigarettes.

These laws have strong community support and contribute to reducing smoking rates and tobacco-related harm.

On 1 April 2024 the Public Health (Tobacco and Other Products) Act 2023 (the Act) and Public Health (Tobacco and Other Products) Regulations 2024 (the Regulations) came into effect.

These laws consolidated and replaced tobacco related laws and instruments. 

Some of the key reforms related to Owners Corporations include:  

• smoking and vaping bans at outdoor public children’s playground equipment, skate parks and sporting venues during organised under-age sporting events, as well as outdoor areas within public swimming pool complexes
• a smoking and vaping ban in outdoor dining areas
• smoking and vaping bans within four meters of building entrances 
• increases to the maximum infringement penalties for a number of offences, and specific provisions for higher ‘body corporate’ offences

Owners Corporation Model Rules

From December 1, 2021, the Model Rules for an Owners Corporation include rules related to smoke drift. These are:

Model Rule 1.1:

A lot of owner or occupier must not use the lot, or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier, or user of another lot.

Model Rule 1.4 refers particularly to smoke drift and is:

A lot owner or occupier in a multi-level development 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.

Is smoking allowed in communal areas?

Under the Owners Corporations Act 2006, Owners Corporations are able to pass a special resolution at the Annual General Meeting to create rules, prohibiting smoking in communal areas.

In newer developments, the building itself may already have rules in place to prevent smoking in communal areas. Please refer to the specific rules for your premise.

As a general consideration residents should not smoke or vape in common areas, in particular those that are enclosed as this may affect or damage the essential services and occupancy safety by inadvertently activating the fire alarm systems and calling fire brigade services to the building. Costs associated with call outs to the building may be chargeable to the lot owner or resident.

Is smoking allowed on the balcony?

Generally, for older buildings smoking is allowed on balconies but this is not the case for many newer developments.  For newer developments, there may be specific building rules in place prohibiting occupants from smoking even within their dwelling or on the balcony. For older buildings without these building regulations, smokers have a right to consume cigarettes, cigars etc. on their balcony.

However, Model Rule 1.4 refers particularly to smoke drift and could be applied. And it could be argued that a smoking neighbour is in breach of Model Rule 1.1.

What to do if you are impacted by Tobacco smoke or any other substance?

If you are affected by tobacco smoke drift or other substances, and it is causing a nuisance, please enter into discussions with your neighbours to come to a mutually agreeable outcome.

If unsuccessful, please contact Building Management and/or the Owners Corporation Manager for advice and assistance.

The Owners Corporation, provided there is sufficient evidence of a breach of rule, may assist the parties with dispute resolution and grievance procedures, and/ or can serve a breach to the Lot pursuant to Model rules 1.1 and 1.4. If necessary and in more complex cases that are unable to be resolved by the Owners Corporations internal dispute resolution process, residents affected may make application to the Victorian Civil and Administrative Tribunal for an appropriate remedy against the parties.