Smoking and Vaping in Apartments: When Does It Cross the Line
Few issues cause as much friction in apartment living as smoking and vaping. One person sees it as a personal choice; their neighbour experiences it as smoke drifting through windows, doors or vents, sometimes daily.
So what does the law actually say? And when does smoking or vaping stop being a private activity and become a legal problem? For this article we have focused on NSW but you can apply these principals across your state or territory.
Let’s clear the air.
The Starting Point: You Can Use Your Lot, But Not at Others’ Expense
In NSW strata schemes, everyone has the right to use and enjoy their lot. But that right comes with an important limit: you must not use your lot in a way that unreasonably interferes with someone else’s enjoyment of theirs.
This principle comes from:
Registered by-laws
Long-established common law rules about nuisance
Smoking and vaping disputes usually turn on this one concept: nuisance.
What Does “Nuisance” Actually Mean?
Legally speaking, a nuisance isn’t just something that annoys you.
A private nuisance exists where:
There is an interference with another person’s use or enjoyment of land.
and
That interference is unreasonable in all the circumstances.
In apartment buildings, smoke or vapour may amount to a nuisance if it:
Regularly drifts into neighbouring apartments or balconies.
Enters through windows, doors, vents or gaps in the building.
Causes discomfort, health symptoms, or prevents normal enjoyment of a home.
Crucially, a person does not have to intend to cause a nuisance. Smoking may be lawful, but its effects may not be.
What Strata Law Says About Smoking and Vaping
Under section 153 of the Strata Schemes Management Act 2015 an owner or occupier must not use their lot or common property in a way that causes a nuisance or hazard to another resident.
Many strata schemes also have specific by-laws that:
Prohibit smoking on common property.
Restrict smoking on balconies or courtyards.
Prevent smoke or vapours from drifting into other lots.
Even if a scheme has no smoking-specific by-law, the general nuisance provisions still apply.
Vaping is treated much the same as smoking for strata purposes. The law looks at the impact, not the delivery method.
The Key Case Everyone Refers To (and Why It Matters)
One of the most commonly cited cases on smoke drift in strata buildings is:
Owners Corporation SP 49822 v May & Ors (2006)
This case was decided under the former Strata Schemes Management Act 1996 at the then Consumer Trader & Tenancy Tribunal (since replaced with NCAT) but its reasoning is still influential.
What Happened?
Residents complained that cigarette smoke from a neighbouring apartment was drifting into their lot.
The smoke was frequent and interfered with their comfort and enjoyment.
The owners corporation took action.
What Did the Tribunal Decide?
The Tribunal found that:
Smoke drift can constitute a nuisance.
Even though smoking itself is lawful, allowing smoke to penetrate another lot is not.
Orders could be made restraining the conduct causing the nuisance.
Importantly, the Tribunal noted that compliance with the orders might mean the occupants could not smoke inside their unit at all, if that was the only way to prevent smoke drift.
This case firmly established a principle that still applies today: You can smoke, but not if the smoke affects your neighbours.
More Recent Decisions Under the Current Act
Since the introduction of the 2015 Act, the NSW Civil & Administrative Tribunal has continued to apply the same logic.
Cases such as:
confirm that:
Smoke drift can breach section 153.
Repeated or ongoing interference is key
Orders can be made to stop or restrict smoking behaviour
The judgement’s directions are consistent: amenity matters.
What About Vaping, Is It Different?
In short, no.
Tribunals assess vaping in exactly the same way:
Does the vapour enter neighbouring lots?
Is it frequent or persistent?
Does it interfere with reasonable enjoyment?
If the answer is yes, it may still be a nuisance regardless of whether or not the vapour contains nicotine or how quickly it dissipates.
Evidence Matters (A Lot)
These cases are not decided on feelings alone.
Useful evidence includes:
Logs showing dates, times and frequency of smoke or vapour.
Photos or videos showing visible smoke or vapour.
Statements from other affected resident.
Medical evidence (where relevant).
Reports identifying airflow paths within the building.
For strata committees and strata managers, documenting the investigation process is just as important as the complaint itself.
What Should Residents Do If Smoke or Vapour Is a Problem?
A sensible path usually looks like this:
Raise the issue politely with the neighbour (where appropriate).
Put the complaint in writing to the strata manager or committee.
Keep records of when and how the problem occurs.
Attempt mediation.
Apply to the Tribunal if the issue remains unresolved.
Tribunals expect people to try to resolve matters before formal proceedings.
What Committees and Strata Managers Should Focus On
Good practice includes:
Clear nuisance and smoking by-laws
Consistent handling of complaints
Evidence-based decision-making
Avoiding knee-jerk enforcement
Seeking tribunal orders when needed
The aim is not to “ban smoking”, but to protect residents from unreasonable interference.
When the smoke clears
Smoking and vaping are legal activities but apartment living comes with limits.
If smoke or vapour drifts into another lot and interferes with someone’s ability to enjoy their home, the law is clear: that can be a nuisance, and it can be stopped.
Strata living works best when everyone understands that personal freedom ends where someone else’s front door begins.
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Disclaimer:
This article is intended for general educational purposes only and does not constitute legal or financial advice. Readers should seek independent legal and professional guidance relevant to their specific circumstances and jurisdiction