What can I do about a condo neighbour who smokes: Reasonable doubt

My neighbour's cigarette and marijuana smoke enters my condo unit. Who's responsible for making it stop?

A recent CBC article told the story of a Toronto family that has been dealing with marijuana smoke entering their condominium unit for nearly five years. According to the article, the smoke emanates from a neighbour’s unit, and enters through the front door, windows and electrical sockets of the family’s unit. Efforts by the condo corporation to seal the unit and to prevent the neighbour from smoking in his or her unit, have apparently been unsuccessful.

This story is certainly unfortunate, but (sadly) not unique, as the issue of second-hand smoke – both cigarette and marijuana – is one that arises frequently in the context of condos. In some cases, the issue is smoke entering a unit from the common areas of the building, while other issues may involve smoke seeping directly from one unit to another. As well, while the percentage of people who smoke cigarettes is generally declining, pending changes to the law regarding recreational marijuana use could lead to an increase in the percentage of people who smoke marijuana (or, at least, who do so openly). As such, it is likely that smoking will continue to be an issue that affects condominium unit residents and condominium corporations.

For unit residents who are so affected, the question of how to deal with this issue will generally depend on the source of the smoke, and the means by which the smoke is entering a unit. In most cases, responsibility for addressing the issue will rest on both the condo corporation and the unit resident who smokes. The condominium corporation is responsible for enacting (to the extent that the corporation’s board of directors deems it advisable to do so) and enforcing rules regarding smoking, and the unit resident who smokes is responsible for complying with the rules. The condominium corporation may also be responsible for carrying out maintenance and repair work if some is required to prevent smoke from seeping into a unit.

If, for example, smoke is entering a unit through an open window or vent, and the source of the smoke is an exterior common area, addressing the issue may be relatively simple. In this case, the condominium corporation may elect to address the issue by designating a smoking area that is away from the building. (It should be noted that provincial and/or municipal laws may, depending on the layout of the building, prohibit smoking in certain areas, including indoor common areas and areas near building entrances.) Provided that the unit resident who smokes complies with the corporation’s directive to only smoke in the designated area, this may resolve the issue.

If the source of the smoke is a neighbouring unit, however, addressing the issue may be more complicated. The spaces between units are typically designated as common elements, and are generally the responsibility of the condominium corporation to maintain and repair. As such, in order to address the issue, the condominium corporation will generally first need to determine the means by which the smoke is entering the unit, and whether the smoke can be addressed by repairing the common elements. If, as in the case of the family featured in the CBC article referenced above, smoke is entering a unit through the common element demising wall between the units, the condominium corporation may be responsible for sealing any cracks, holes or other gaps in that wall.

It is possible, however, that the smoke may be entering the unit by other means, such as from the common element corridor. In that case, if there is no issue of disrepair (for example, the corridor air circulation system or the unit entry door), the condominium corporation may be responsible for taking steps to ensure that the unit resident who smokes does so in a way that does not allow the smoke to migrate to other units. This could involve requiring the smoker to purchase and install an air purification system in the smoker’s unit to prevent untreated smoke from exiting the unit. It could also, in sufficiently serious cases (as in the case of the family featured in the CBC article), involve the corporation obtaining a court order prohibiting the smoker from smoking in his or her unit.

Regardless of how smoke is entering a unit, no person is required to simply put up with cigarette or marijuana smoke if the smoke is interfering with the person’s reasonable enjoyment of their unit. The question is what steps can be taken to best address the issue, and who is responsible for taking those steps.

Timothy Duggan is a condominium lawyer and civil litigator with Horlick Levitt Di Lella LLP. Reasonable Doubt appears 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.

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