Smoke-drift for different housing

This guide is for Queenslanders who are affected by tobacco smoke drifting into their home or property. It is for anyone living in a single dwelling. A single dwelling is a house on its own block of land, it does not share any common property and is not part of a community titles scheme or governed by a body corporate. There are some steps you can take to try to resolve the issue. Please note that this guide is not intended as legal advice.

• Discuss with the person smoking
  Try reaching out to the person who is smoking. You can speak to them in person or in writing. Let them know that the smoke is drifting into your home or property. Explain that the smoke-drift is affecting you or your household’s health. Let them know that you would like to work together to find a solution so that smoke does not drift into your property. Keep a record of your communications if possible.
• Contact your local council
  If talking to the person smoking does not help, you can consider contacting your local council. While local councils currently have limited power to address issues related to smoke-drift, it is worth letting them know about the problem. Second-hand smoke is a nuisance and a hazard to health. It is important that people living in single dwelling are protected from smoke drift. You can find the contact details for your local council using the local government directory.
• Report the issue to their property manager or landlord
  If your neighbour is renting, you can consider reporting the issue to their property manager or landlord. Under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), tenants must not cause a nuisance, and must not interfere with the reasonable peace, comfort or privacy of a neighbour.¹ The issue should be raised through the property manager or owner. Let them know that their tenant is smoking in or around the property, and that smoke is drifting into your property. Explain that the smoke-drift is affecting you or your household’s health. You can also explain that the smoke residue (third-hand smoke) can stay on surfaces and furniture for a long time, and is difficult to remove. Ask the property manager or owner to consider speaking with the tenant about the issue, to help create a healthier living environment for everyone. Keep a record of your communications if possible.
  If the situation doesn’t improve and the property manager or owner is willing to take further action, they may be able to utilise a dispute resolution service with the Residential Tenancies Authority (RTA).² If the problem still cannot be resolved and RTA issues a Notice of unresolved dispute, the property manager / landlord may be able to apply to the Queensland Civil and Administrative Tribunal (QCAT) to make a decision on the dispute.³⁴
• Report the issue to your property manager or landlord
  If you are renting, you can consider reporting the issue to your property manager or landlord. Under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), landlords must take reasonable steps to ensure that the tenant has quiet enjoyment of the premises.⁵ Let them know your situation. You can include a copy of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) and highlight the responsibility of landlords under section 183 of that Act. Explain to them that you have already taken steps to resolve this problem on your own. Ask them to help you to speak with the neighbour or their property manager or landlord (if they have one) to resolve the issue. Remember to keep a record of your communications if possible.
• Seek legal advice
  As there are no specifically established governing bodies that protect people living in single dwelling from smoke-drift, there are few options to resolve the issue. If the smoke-drift continues, you may consider getting legal advice.

This guide is for Queenslanders who are affected by tobacco smoke drifting into their home or property. It is for anyone living in a single dwelling. A single dwelling is a house on its own block of land, it does not share any common property and is not part of a community titles scheme or governed by a body corporate. There are some steps you can take to try to resolve the issue. Please note that this guide is not intended as legal advice.

Understanding Multi-unit Housing in Queensland

Before you take action to address smoke-drift in your building or home, it is important to understand how multi-unit housing is managed in Queensland. The following section will provide information about community titles schemes, bodies corporate, and by-laws. Whether you are an owner or a tenant, this section will help you to engage more confidently and effectively when advocating for a healthier, smoke-free building.

What is a community titles scheme?¹

A community titles scheme is a property ownership model where a single legal framework is created over a parcel of land comprising of at least two lots and common property, governed by a community management statement (CMS).

A community titles scheme can be any duplex, residential unit block, high rise accommodation complex, shopping complex or business park. It can also include townhouses and free-standing houses which are part of a larger community plan. Community titles schemes are comprised of individually owned lots or units (an area of land or part of a building) as well as shared common property and facilities. If you live in an apartment, flat, unit or townhouse (or any other multi-unit property with shared facilities or common areas) that is managed by a body corporate, you are likely living in a community titles scheme.

In Queensland, community titles schemes are governed primarily by the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act), its regulations and the CMS for the scheme. The BCCM Act provides a framework for managing and administering community titles schemes and includes a range of rights and responsibilities for both bodies corporate and lot owners within the scheme.

What is a body corporate and what does it do?²

A body corporate is a legal entity which is created when a CMS is registered with the Titles Office establishing a community titles scheme. The body corporate is responsible for (among other things):

• maintaining and managing common property;
• determining levies (body corporate fees) which owners must pay;
• taking out public risk insurance, including of common property and assets, and any compulsory building insurance;
• making and enforcing by-laws; and
• keeping records for the body corporate.

Did you know?³

In 2024, amendments were made to the BCCM Act to allow bodies corporate to make by-laws that prohibit smoking (including vaping) on common property or an outdoor area.⁴ The BCCM Act provides that an occupier must not cause a nuisance or hazard, or interfere unreasonably with the use or enjoyment of another lot or common property – including by regularly exposing a person in another lot or on common property to smoke.⁵

What are by-laws?⁶

By-laws are a set of “rules” that a body corporate makes to manage the common property, body corporate assets, services and facilities within the scheme, and the lots. By-laws can also regulate the behaviours of occupiers (being owners, tenants, and their guests) on the common property and within their lots. By-laws are contained within the current CMS for the scheme.

Following the 2024 amendments to the BCCM Act, a body corporate can make by-laws that prohibit or restrict a person from smoking or inhaling some or all smoking products on all or part of:

• the common property of a scheme (other than the common property that a lot owner has an exclusive right to use);
• the body corporate assets (other than a body corporate asset that a lot owner has an exclusive use right to use); and
• any outdoor areas of: a lot; common property that an occupier of a lot may use under an exclusive use by-law; and body corporate assets that an occupier of a lot may use under an exclusive use by-law.

What is an exclusive use by-law?⁷

An exclusive use by-law is contained within the CMS for a scheme and gives exclusive use rights to specific lot owners for areas of common property within the scheme. For example, an exclusive use by-law may give the owner of a unit within a high-rise accommodation building the exclusive right to use an area of the common property as their courtyard or as a car parking space.

What does this mean for introducing a smoke-free by-law?

Bodies corporate can now make a by-law that prohibits smoking (and vaping) on all or part of the common property areas and on all or part of an outdoor area of a lot (but not inside a lot). An outdoor area includes a balcony, courtyard, patio, or verandah. This means that it may not be possible to make a by-law that completely prohibits smoking on the whole of the scheme (including inside a lot).

Section 167 of the BCCM Act prohibits occupiers from causing a nuisance, hazard, or unreasonable interference with the use and enjoyment of a lot or common property of another occupier. If an occupier is regularly exposing another occupier to smoke, it may be considered a breach of this law. Although by-laws completely restricting smoking (specifically for indoor exclusive use areas) may not be made, section 167 of the BCCM Act prohibits lot owners within the scheme from smoking in a way that causes a nuisance to other occupiers.

Section 112 of the Tobacco and Other Smoking Products Act 1998 (Qld) (TOSPA Act) provides that a person must not smoke in an enclosed place. Specifically, section 112 prohibits smoking in enclosed common areas of multi-unit residential accommodation. The common property of a community titles scheme falls within the definition of “common area” under the TOSPA Act. Whilst a by-law cannot prevent an occupier from smoking within their enclosed exclusive use area, the TOSPA Act prohibits all indoor smoking on common property.

If you are an occupier (both owners and tenants) or a guest:

• You must comply with the by-laws set by the body corporate, which may include a by-law that prohibits smoking and vaping on any part of the property within the scheme. Under the BCCM Act, the body corporate can take action to enforce a by-law if an occupier breaches the by-laws.
• You must comply with section 167 of the BCCM Act as to not cause a ‘nuisance’, ‘hazard’ or ‘unreasonable interference’ by exposing a neighbour to smoke.

The Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA) outlines the rights and responsibilities of tenants, property managers/agents, owners/landlords and caravan park managers involved in residential renting in Queensland. Under the RTRAA:

• Landlords must take reasonable steps to ensure that their tenant has quiet enjoyment of the premises.⁸
• Tenants must not cause a nuisance, and must not interfere with the reasonable peace, comfort or privacy of a neighbour.⁹

If you are experiencing smoke-drift in your home, consider the following steps to achieving a smoke-free living environment:

• Check your by-laws
  Find out the existing by-laws regarding smoking in your scheme. All occupiers (including owners and tenants) and guests must comply with the by-laws. You can request for a copy of the by-laws from the body corporate, property manager, or landlord. If there is no by-law that restricts smoking, you may consider advocating to introduce one (see step 6).
  Note that a by-law that permits smoking contrary to the BCCM Act may be an unlawful by-law.
• Discuss with the person smoking
  Try discussing the issue with the person smoking. Consider approaching them in person or in writing. Explain that their smoke is drifting into your home and impacting you or your family’s health. If there is an existing smoke-free by-law and you believe that they may be in breach of the rules, attach a copy of the relevant by-law. Explain that you wish to discuss this with them and come up with possible solutions to avoid smoke from drifting into your home.
  Keep a record of your communications if possible.
• Lodge a complaint with the body corporate
  If discussing with your neighbour is not successful, you can report the issue to the body corporate manager, property manager, real estate agent or landlord (where applicable). Explain your situation and request they look into the issue. It will be helpful if you can provide them with information on where the smoke is coming from, how often it happens, and whether you have spoken with the person smoking. Your property manager, real estate agent or landlord can also help you to report the issue to the body corporate. The body corporate manager may speak to the occupier on your behalf to try to resolve the issue. If the person smoking is breaching existing smoke-free by-laws, the body corporate can issue a by-law contravention notice to them.¹⁰ If a person does not comply with a contravention notice, the body corporate can start court proceedings or apply for conciliation with the Office of the Commissioner for Body Corporate and Community Management (BCCM Office) to enforce the by-law. Remember to keep a record of your communications.
• Apply for conciliation with the Office of the Commissioner for Body Corporate and Community Management
  If the matter was not resolved through the body corporate, you may be able to apply for conciliation with the BCCM Office.¹¹ A conciliator (an independent person employed by the Department of Justice) will help to resolve the dispute. If the matter could not be resolved via conciliation, you may be able to apply for an adjudication, which is a more formal process than conciliation.¹² An adjudicator makes a decision after considering the application and written submissions from all parties involved in the dispute. The Courts can enforce the adjudicator’s decision.
• Apply to the Queensland Civil and Administrative Tribunal
  If the dispute cannot be resolved through the BCCM Office, you may be able to apply to the Queensland Civil and Administrative Tribunal (QCAT). QCAT is an independent tribunal that resolves civil disputes, including those related to body corporate and community management schemes.¹³ You can appeal an adjudicator’s decision with QCAT. However, this can be a long and costly process.
• Introduce a smoke-free by-law
  If there are no existing smoke-free by-laws, advocate for one to address smoke drift issues in your building. There is a procedure set out in the BCCM Act that a body corporate will follow to make new, or change existing, by-laws.
  If you are an owner, you can propose a motion to make a smoke-free by-law at a general meeting of the body corporate. A motion to include a non-smoking by-law must be agreed to by a “special resolution” of the body corporate. To pass a special resolution:

1. at least two-thirds of the votes cast must be in favour of the motion;

2. the number of votes against the motion must not be more than 25% of the total number of lots; and

3. the total contribution schedule lot entitlements of the votes against the motion must not be more than 25% of the total contribution schedule lot entitlements for all lots in the scheme.

If you are a tenant, your landlord can advocate for and vote for a smoke-free by-law on your behalf. You can also request for your property manager or real estate agent to reach out to the owner on your behalf.
We recommend the following wording for a smoke-free by-law, which mirrors the wording of the relevant sections of the BCCM Act.

• Seek legal advice
  If the smoke-drift continues, we recommend that you obtain legal advice.

This guide is for public and community housing residents in Queensland who are affected by tobacco smoke drifting into their home or property. The guide will be relevant for residents who live in public housing, transitional housing, and emergency or temporary housing. Please note that this guide is not intended as legal advice.

Public and Community Housing in Queensland

The Queensland Department of Housing and Public Works (Department) manages public housing, which is a type of long-term social housing for people in need. If you are living in public housing, you should have a residential tenancy agreement with the Department as your landlord.¹ Alternatively, community housing is another form of housing assistance that could be short-term or temporary, and is usually delivered by non-government organisations, local governments or community organisations. Depending on the type of community housing, you may have a residential tenancy agreement in place.

If you have a residential tenancy agreement with your housing provider, you will have rights under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). Under this Act:

• Landlords must take reasonable steps to ensure that their tenant has quiet enjoyment of the premises.²
• Tenants must not cause a nuisance, and must not interfere with the reasonable peace, comfort or privacy of a neighbour.³

If you are experiencing smoke-drift in your home or property, consider taking the following steps:

• Check the existing smoke-free rules
  If you live in public or community housing that is a multi-unit building, smoking is prohibited in the enclosed common areas. Under the Tobacco and Other Smoking Products Act 1998 (Qld), smoking is prohibited in any enclosed common areas of multi-unit residential accommodation.⁴ The smoking policy and terms of your tenancy agreement may vary depending on your housing provider. It is best to check your tenancy agreement and with your housing provider.
• Discuss with the person smoking
  The next step is to try talking to the person who is smoking. You can speak to them in person or write them a letter. Let them know that the smoke is drifting into your home or property. Explain that the smoke-drift is affecting you or your household’s health. If you think that they may be in breach of a smoke-free rule, you can include a copy of the relevant rule. Let them know that you would like to work together to find a solution so that smoke does not drift into your property. Keep a record of your communications if possible.
• Report the issue to your housing provider
  If you have tried speaking with your neighbour and the smoke-drift continues, you can report the issue to your housing provider. If you live in public housing, contact your local Housing Service Centre. If you live in community housing, speak to the housing provider or onsite staff directly. Let them know your situation. You can also explain that the smoke residue (third-hand smoke) can stay on surfaces and furniture for a long time, and is difficult to remove. If you have a residential tenancy agreement in place, attach a copy of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) and point out the responsibility of landlords and tenants under this Act. If the problem continues, you may be able to utilise a dispute resolution service with the Residential Tenancies Authority (RTA).⁵ If you don’t have a residential tenancy agreement with your housing provider, your options for further action may be limited. However, it is still worth letting your housing provider know about the issue. Remember to keep a record of your communications.
• Contact your local council
  If the issue still cannot be resolved, you can consider contacting your local council. While local councils currently have limited power to address issues related to smoke-drift, it is worth bringing their attention to the problem. Second-hand smoke exposure is a nuisance and hazard to health. It is important that people living in public and community housing are protected from second-hand smoke. You can find the contact details for your local council using the local government directory.
• Seek legal advice
  If the smoke-drift continues, we recommend that you obtain legal advice.