Smoking in Apartments – What Are The Rules?

Smoking in apartments has become a decisive issue in recent years. A 2013 survey shows 12.6% of adults within Victoria are smokers. Okay, so what does that mean for smoking in apartments in my Owners Corporation?

Today, we will answer the most commonly asked questions relating to smoking in apartments or other Owners Corporation.

Is smoking allowed in communal areas in the Owners Corporation?

Answer: Sometimes, but usually it is not allowed.

Under a 2006 Act, Owners corporations are able to pass a special resolution at the Annual General Meeting to prohibit smoking in shared areas. Residents breaching this order can then be issued with a ‘contravention notice’ and a fine can be issued through VCAT. Additionally, in newer developments, the building itself may already have rules in place to prevent smoking in designated community areas.

If an Owners corporation has not passed this resolution and no building rules exist, smokers may be able to smoke in outdoor shared areas without issue. While neighbours may be able to argue that smoking is in breach of ‘The Owners Corporation Regulations 2007, Model Rule 1.1’ which states an owner or occupier may not [use the lot] to cause a hazard to the health [of an occupier/owner of another lot], the fact that cigarettes remain a legally purchased product, it is very hard to argue that a smoker is in breach of the rule.

Is smoking allowed on a balcony?

Answer: 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 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. Again it can be argued that a smoking neighbour is in breach of Model Rule 1.1, however, it remains difficult to prove.

Are these laws going to change?

Answer: Quite Possibly

Consumer Affairs Victoria announced last year that they were looking into the issue of smokers drift. Once the research is complete, recommendations for changes in by-laws to allow Owners corporations to ban smoking may be introduced.

For more information, contact your Bluestone OCM today.

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