Smoking or no smoking, we must not be a nuisance to our neighbours!

Article locked Published on by Me Annie Lapointe notaire

Topic(s): Legal

As smoke is a current subject, it is possible to see a certain evolution in the judgements rendered on the subject. In a recent decision of the Régie du logement (1), the landlord asks for the termination of the tenant’s lease on the grounds that cigarette and cannabis smoke disturb the peaceful enjoyment of the premises for the other occupants of the building.

The peculiarity of this file is that no clause of prohibition of smoking is in the lease. Also, the tenant rents a unit owned by a divided co-ownership (condominium), that is, his neighbours are not tenants, but rather neighbouring owners. The problem began when the smells of tobacco and other substances started to be an inconvenience for the co-owner living above the tenant.

At a meeting of co-owners, the issue of smoke is discussed and a decision is made that all leases will now have a no-smoking clause.

The decision states that the landlord whose tenant is a smoker is then asked to modify his lease accordingly; which is what the landlord is trying to do, by sending a notice of modification of the terms of the lease for renewal, by making the housing “non-smoking”.

The tenant, for his part, refuses this modification. We remind you that to make a change of lease (increase in rent or other modification) to the tenant when he has refused, the Régie du logement must be made to decide on the desired modification. Depending on the decision we are dealing with here, the landlord would not have gone through this step. Following the tenant’s refusal, no modification to the lease will therefore have taken place regarding the smoke.

The issue with the co-owners still remains however: a petition from other co-owners is even sent to the landlord and “urges him to ask the eviction of his tenant on the grounds that they can no longer bear the “odours of drugs continuously” coming from the housing despite several interventions to have him stop smoking.”

The co-owner living just above continues to complain that the smoke circulates in the interior ducts, permeating the carpets ...: he ends up renting his condo unit saying that can no longer live there.

The judge of the Régie du logement reminds that the tenant has the obligation to behave in such a way as not to disturb the normal enjoyment of the premises by the other tenants, failing which he may be liable to the landlord and the other tenants. On the other hand, he also recalls that the neighbours must accept the normal disadvantages of the neighbourhood which do not exceed the limits of the tolerance that they must express according to the nature of the premises and the local customs.

It is not always easy to determine what constitutes an abnormal inconvenience, but it must be determined objectively, at the discretion of the court. In terms of rental housing, it says “that two essential conditions must be met. It must be an abnormal or excessive inconvenience that is persistent.”

The judge made moreover the following remarks about the smoke and the prohibitions in the lease, which we reproduce here for you: “The question of whether a ban on smoking in a dwelling is valid no longer arises. It is now possible at the conclusion of the lease to provide a prohibitory clause for smoking in a dwelling.” And, “It is also now well known that exposure to tobacco smoke can have an impact on the health of non-smokers. Advertising campaigns and the passing of successive laws in recent years restricting smoking in several places¹ reveal a public health concern in Quebec.”

In this case, the tenant is not bound by such a clause prohibiting smoking in his dwelling, but the judge still comes to the conclusion, with the evidence presented to him, that the tenant is harming the peaceful enjoyment of the premises of other occupants, disturbs the management of the landlord, exposes him to legal remedies and jeopardizes the condition of the dwelling because of the smoke, which is sufficient to terminate his lease.

¹ 243211 31 20151026 G, 2018 QCRDL 3482.

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