Landlord Caught in the Middle, Faces Tough Decision

by | Dec 20, 2010 | Rental Property Management Tips

Q: I am a landlord, and I have a question regarding smoking in the rental unit. I own a house with multiple units and the tenant in the lower level continues to smoke inside even though I have asked him not to as the tenant that lives above has asthma.

The lower level tenant has been there for about 4 years and signed a lease the first couple of years, but has not re-signed anything since then. Can I enforce “No Smoking” – even if it does not say it in his original lease? Should I have forced him to sign a new lease? – TVS Landlord

First, let’s look at the nature of the tenancy agreement you have with the downstairs tenant. Although you had a lease with him at one time, now he is living on a month-to-month arrangement. This limits your rights as a landlord to enforce any new policies, including a ban on cigarette smoking inside the residence.

Taking Ontario as as example, (other provinces apply similar rules), section 38(1) of the Residential Tenancies Act, 2006:

“If a tenancy agreement for a fixed term ends and has not been renewed or terminated, the landlord and tenant shall be deemed to have renewed it as a monthly tenancy agreement containing the same terms and conditions that are in the expired tenancy agreement…”

The Non-Smokers’ Rights Association of Canada, a non-profit that provides information for landlords considering a cigarette smoking ban, explains that where “you have a building with existing tenants, a landlord will have to gradually go smoke-free through attrition. In other words, your current tenants who smoke (and are not supportive of the policy) will be grandfathered, and thus will be permitted to continue smoking as long as they live in the building. All new tenants will sign a new lease that includes the no-smoking policy. As existing tenants move out, their units can be cleaned up and declared no-smoking too. Note that upon expiration of a one-year lease, you cannot make an existing tenant who remains in the unit sign a new lease containing the no-smoking policy.”

So if there was no ban on smoking originally, you may not be able to require this tenant to stop smoking. For the same reason, however, it appears that you did not represent to the asthma sufferer that the property would be smoke-free.

As for the lease-signing issue, many provinces prohibit a landlord from forcing an existing tenant to sign a new lease once the original tenancy has expired and the term has become a month-to-month tenancy. It is also unclear whether you could terminate this month-to-month tenancy simply on the grounds that you now want to institute a non-smoking policy. However, Smoke Free Housing Ontario does offer some additional suggestions:

Try to find out where the smoke is coming from, and where it is entering the upstairs unit. You can try sealing and caulking cracks and gaps to mitigate the smoke. This will work best if you seal both units: where it is coming from and where it is going.

It is also worth double-checking the ventilation system to make sure everything is in working order.

Try talking to your tenant who smokes to see if they might be amenable to smoking outdoors, or in one particular room with the window open. You never know–perhaps this tenant has no idea that the smoke is aggravating a medical condition for another tenant in the building.

According to SFHO, tenants are entitled to reasonable enjoyment of their rental units and the premises, including freedom from unreasonable disturbance from other tenants. As the landlord, you are responsible for ensuring that tenants have reasonable enjoyment.

If smoke from one unit is significantly bothering one or more tenants, the second-hand smoke can constitute a breach of reasonable enjoyment. Addressing the issue of second-hand smoke is similar to addressing the issue of loud music. Playing music is allowed in private units, yet when it’s played too loud and interferes with the reasonable enjoyment of other tenants, landlords can take steps to stop this intrusion, including last resort steps to end the tenancy.

Eviction is a costly and time-consuming option and a landlord can only win an eviction order under very specific circumstances, so we suggest you speak with a local legal expert before you serve notice to terminate. For Ontario landlords, we recommend April Stewart with Landlord Legal.

This post is provided by Tenant Verification Service, Inc., helping landlords reduce the risks of renting with fraud prevention tools that include Tenant Screening, Tenant Background Checks, (U.S. and Canada), as well as Criminal Background Checks, and Eviction Reports (U.S. only).

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Disclaimer: The information provided in this post in not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.

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