If you are a smoker (though the odds are that you are not), and you rent your home, it is likely that you have been faced with the question at some point: are you permitted to smoke in your unit?
Just as my right to swing my arm ends where my neighbour’s nose begins, your entitlement to do as you wish in your own rented unit (such as smoke) may be restricted if your doing so interferes with someone else’s property, comfort or interests.
Your lease with your landlord may contain restrictions with respect to smoking. Given that the odour of cigarette, cigar or marijuana smoke can linger, many landlords include a provision in their leases that prohibit smoking. If the tenant breaches this provision, the landlord could file an application with the Landlord and Tenant Board (LTB) seeking to terminate the tenant’s tenancy. Whether the LTB would grant such an order would depend on the circumstances of an individual case.
Even if the LTB does not terminate your tenancy, consider that you agreed not to smoke when you signed your lease. Your landlord may not be able to legally evict you for it, but breaching the terms of your agreement will likely damage your relationship – and cause your landlord to be less lenient about other matters like noise complaints, or late rent.
Your landlord could, in fact, seek to recover costs related to removing the smell of smoke from the unit if it is determined that things like repainting or professional carpet cleaning are required.
If you live in an apartment building, or in a house with multiple units, there is a possibility that the smoke from your unit could travel to another unit. If your smoke causes a nuisance for another tenant that interferes with that tenant’s reasonable enjoyment of their unit, your landlord could take steps to require you to stop smoking. This would particularly be the case if the other tenant is, for example, allergic to smoke. If you were to continue to cause the nuisance by smoking in your unit, your landlord could seek an order from the LTB terminating your tenancy.
If you rent a unit in a condominium building, the condominium may have its own rules regarding smoking. In recent years, an increasing number of condominium buildings have adopted rules restricting or prohibiting smoking on the property. As a resident of the condominium building, you would be subject to these rules even if your lease is silent on the issue of smoking. If you breach these rules, you could be faced with enforcement action by both the condominium corporation and your landlord.
Even if the condominium building does not have rules prohibiting smoking in the units, it is still possible that you smoking in your unit could cause a nuisance. Generally speaking, condominium corporations have an obligation to address issues where the conduct of one resident interferes with another’s reasonable enjoyment of their unit.
If your smoke causes a nuisance to another unit resident, the condominium corporation may become involved in taking steps to stop you from smoking in your unit. In sufficiently serious cases, this could involve proceedings in the Superior Court of Justice, in which the court could make a significant costs award against you.
This was the case in Toronto Standard Condominium Corp. No. 2032 v. Boudair, in which the court found that the tenants had smoked excessively in their rented condominium unit. As a result, among other things, the court ordered the tenants to pay a total of $20,000.00 in court costs to the condominium corporation and to their landlord.
Your home may be your castle, but that does not mean that you are free to do anything you wish within its walls, particularly if the activity affects someone outside those walls.
Tim Duggan is a condominium lawyer and civil litigator with Horlick Levitt Di Lella LLP. Reasonable Doubt appears on www.nowtoronto.com on Mondays. You can contact him on Twitter at @timmyd_ and tell him what you would like to read about in future columns.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Horlick Levitt Di Lella LLP or the lawyers of Horlick Levitt Di Lella LLP.
