What Landlords, Condominium Owners, and Co-ops Need to Know

It is legal to adopt smoke-free policies in apartments and condos.

Landlords have the legal right to designate specific apartment units or entire buildings as smoke-free, yet many landlords are unaware of this important fact. Landlords may legally include "no-smoking" clauses in all new tenancy agreements by banning smoking in individual units, including outdoor patios and balconies, or any areas of the residential property. A smoke-free policy is no different than a policy that prohibits loud music or that protects the well-being of other tenants. Common/civil law generally grants owners the right - and in some cases the obligation - to protect their property and other tenants.

There is no right to smoke enshrined in Canadian law. Further, smoking is not identified under provincial human rights laws as grounds for protection from discrimination, and we are not aware of any case law where smoking was found to be so. Just because someone exercises their freedom to smoke does not mean they have an absolute right to smoke. Furthermore, smoking is not the only way to feed an addiction to nicotine - there are nicotine replacement therapies like the patch or gum, as well as a variety of smokeless tobacco products.

What Landlords can do if tenants breach a "no-smoking" clause.

If a no-smoking clause is written into the lease, a landlord has the right to seek penalties for noncompliance. The usual first step is to issue a written warning, as prescribed in the law. In most provinces/territories, a landlord has the right to seek eviction of a tenant for breaching a smoking ban, but must follow a specific process laid out in the law.

If you had a verbal agreement with the tenant, you may still have the right to seek an eviction depending on whether the residential tenancy law in your province/territory considers verbal agreements to be binding. Consult the Non-Smokers' Rights Association (NSRA) Backgrounder document When Neighbours Smoke for a more detailed summary, which includes links to the residential tenancy law in your province/territory.

What to do about complaints when a lease/agreement does not mention smoking.

Many landlords are hesitant to deal with complaints of smoke that is infiltrating other tenant's homes because of concern that they are interfering with a person's castle or privacy. It should be stressed that personal privacy is not the same as unconstrained freedom. Playing music is a legal activity, yet when it's played too loud and interferes with the 'quiet enjoyment' of other tenants, landlords can take steps to stop this intrusion, including last resort steps to end the tenancy. When it can be shown that smoke is seeping into neighbouring homes on a repeated and prolonged basis, and is substantially interfering with other tenants' enjoyment of the premises, it is incumbent upon the landlord to take whatever steps are reasonably necessary to eliminate the problem.

Even if the lease does not mention smoking, there are a number of clauses that may be relevant to the problem of second-hand smoke. Most rental agreements and provincial/territorial tenancy laws specify that the renter is entitled to "quiet or peaceful enjoyment" of their residence and that it must be "fit for human habitation." It is conceivable that tenants could win a case in arbitration based on the argument that the second-hand smoke infiltrating their unit destroyed the quiet enjoyment of their property. Others have gone this route and been successful. The Non-Smokers' Rights Association has prepared a short document on Canadian case law pertaining to second-hand smoke. Click here for a report on Canadian Case Law on Drifting Second-hand Smoke in Multi-unit Dwellings.

How to make your apartment building smoke-free.

Communicating and implementing a well thought-out smoking policy or ban is arguably a more desirable option than the constant headache of handling second-hand smoke complaints. Indeed, a smoking policy also eliminates the risk of non-smokers breaking their leases or going to arbitration over unwanted second-hand smoke exposure.

You will first need to decide exactly what you mean by smoke-free, as a number of different scenarios are possible:

• smoking is banned in some of the indoor areas, including some private units
• smoking is banned in all indoor areas including all private units
• smoking is banned inside all areas and outside except for in designated smoking areas
• smoking is banned anywhere on the property, both inside and out

Survey tenants to find out the extent of their support for or opposition to a smoking ban in the building. Find out how many smoke, what units they live in, and whether they smoke in their homes - don't assume that all smokers will oppose the smoking ban. Identify which sections or buildings could become non-smoking most easily by asking residents, "Would you prefer to live in a totally non-smoking section or building including the private units and the balconies?"

In many jurisdictions in Canada there are municipal bylaws that prohibit smoking in public areas of buildings, including apartment buildings. If smoking is not already banned in the common areas of your building, start there. Send a letter to all tenants informing them of the new policy and the reasons for it. Give sufficient notice and post highly visible no-smoking signs in the common areas wherever smoking is not permitted.

Following a ban on smoking in common areas, you could then designate certain units or buildings in a large complex as smoke-free. This approach reduces or eliminates tenants' unwanted exposure to second-hand smoke, as well as reducing complaints about second-hand smoke and resultant feuds between tenants.

An alternative would be to gradually shift the entire building to smoke-free status. As smokers move out, prospective new tenants/condominium owners would be advised that the building is becoming "smoke-free" and that smoking is prohibited both within individual units and in common areas. It is recommended that smoking also be prohibited on balconies and patios of units to prevent second-hand smoke from entering open windows. This approach has the advantage of being the least disruptive to current residents but has the disadvantage that it could take a long time before the problem of second-hand smoke is resolved.

With respect to banning smoking in private units, this policy will only apply to new tenants signing new leases/agreements. Existing tenants with existing leases or month-to-month agreements will be exempt unless they agree to sign a new lease upon renewal that includes the smoke-free policy. As such, your building will gradually become smoke-free as the smokers move out.

Make sure you consult the residential tenancy law in your province/territory first. Most tenancy laws have detailed rules regarding how lease agreements can be modified.

Suggested Language to Include in a Lease

The following language can be adapted for inclusion in a lease/tenancy agreement for an apartment or condominium unit. To avoid any possible confusion, be very specific about which areas are included in the ban, and which areas will be excluded from the ban. Also note that the word "shall" is preferable over the word "may," which is more subjective and could be interpreted as permissive.

Can Condominium Corporations ban smoking in the Building?

Condominium owners absolutely have the right to ban smoking in the building, provided the rules for amending the condominium declaration/rules are respected. It is the responsibility of the condominium corporation to ensure that these rules are followed.

A logical first step would be to survey the current owners to determine the degree of support for a smoking ban. Assuming there is a strong majority in support, the next step would be for the owners who are spearheading the initiative to make a formal presentation to the condominium corporation's board of directors.

The rules governing the corporation will specify the process that must be followed in order for the policy change to be adopted.

It is recommended that you consult the law governing condominiums in your province/territory (see the NSRA Backgrounder for links to your province/territory) and your condominium declaration/rules as there are different laws depending on where you live.

For instance, in BC, Strata Corporations can consider adopting smoke-free bylaws that affect individual strata lots, or they can enforce the rules that deal with nuisance or peaceful enjoyment of the property if it can be shown that an owners'/resident's activities are causing a nuisance or hazard with any other person, or unreasonably interferes with the rights of another person to use and enjoy the common property, common assets or another strata lot. (See the Bulletin on drifting second-hand smoke in condominiums prepared by the BC Condominium Home Owners Association.)

One Strata Corporation in Victoria BC - The Mosaic - consistently uses the nuisance clause under the Strata Property Act to address complaints of second-hand smoke. The Strata Corporation did not amend their bylaw, but chose instead to resolve these complaints as they would any other complaints where behaviours of owners are interfering with other owners by enforcing under the "nuisance" clause of the SPA. (Click here for a sample letter the Corporation sends to owners whose smoke is infiltrating other owners' homes.)

There is a market for smoke-free housing.

The majority of Canadians do not smoke, yet despite the increasing demand for smoke-free housing, there are few available smoke-free buildings for those who want and need to live smoke-free.

A recent survey conducted by Ipsos Reid on behalf of the Ontario Tobacco-Free Network found that 64% of all multi-unit dwellers would likely choose a smoke-free building over one where smoking is permitted. See the Overview section for more information on surveys conducted in Canada on second-hand smoke in MUDs.

Manitoba's largest landlord, Globe General Agencies, recognized this untapped market and implemented a smoke-free policy for all their 60 apartment buildings in Manitoba. Effective October 2006, all new tenancies will be smoke-free, including suites, patios and balconies. Existing tenants will continue to be allowed to smoke until they move out of their suites.

**Some of the information in this section was taken from documents created by the Non-Smokers Rights Association - When Neighbours Smoke.