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Smoking bylaws

A smoke-free building does not mean that people who smoke cannot live in the building, or that people who smoke must quit. It does mean that people can not smoke inside the building or in areas specified in the policy. This could include common areas like balconies and patios. Demand is growing fast for smoke-free apartments in Hamilton high-rise apartment buildings.

Landlord and tenant

Landlords have the legal right to designate specific apartment units or entire buildings as smoke-free. Landlords may legally include “no-smoking” clauses in all new tenancy agreements. Also, Landlords usually ban smoking in individual units, outdoor patios, or any other areas of the residential property. A smoke-free policy is no different in contrast to a policy that prohibits loud music. Above all, respect the well-being of other tenants. Today, there are many associations helping increase options on smoke-free living.

Breach a “no-smoking” clause

Landlords have 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 first of all must follow a process.

Landlords can also evict smokers who violate a non-smoking lease agreements, just like any other lease-breaking activity. The landlord can serve a three-day comply or quit notice to the smoking tenants. Tenants cannot be evicted from the property before the court orders it. Furthermore, only the court and the sheriff’s office can evict a tenant.

If a landlord has a verbal agreement with the tenant, They 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) in your province/territory.

What about complaints in smoke-free Hamilton high-rise apartments?

Is there smoke in your apartment? 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.” Hence, it is conceivable that tenants could probably win a case in arbitration based on the argument that the second-hand smoke infiltrating their unit destroyed the quiet enjoyment of their property. This would be true because others have gone this route and been successful.

Smoke-free rental apartment building

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. A smoking policy also eliminates the risk of non-smokers breaking leases in addition to disputes.

Most apartment buildings today ban smoking in indoor areas, including private units. Smoking can sometimes be banned inside all areas and outside except for in designated smoking areas. In many jurisdictions in Canada there are municipal bylaws that prohibit smoking in public areas of buildings, including apartment buildings. A ban on smoking in common areas could designate certain units or buildings in a large complex as smoke-free. This approach reduces or eliminates tenants’ unwanted exposure to second-hand smoke, in addition reduces complaints about second-hand smoke and resultant feuds between tenants.

Smoke-free housing market

Seems like the majority of Canadians do not smoke, despite the increasing demand for smoke-free housing. There are Hamilton high-rise apartments available in smoke-free buildings. Many people want and need to live smoke-free. Multi-unit dwellers would likely choose a smoke-free building over one where smoking is permitted. There are a lot of good reasons contributing to the increase in smoke-free apartments in Hamilton high-rise apartment buildings.

Can a landlord evict a tenant for smoking in their unit?

There are a few things to consider here.

First and foremost in the equation is the question of whether or not a non-smoking clause is included in your rental agreement. In Ontario, landlords have the right to ban all forms of smoking, including smoking marijuana for medical reasons, in all or part of a building including the indoor units and outdoor patios and balconies. A landlord who has included a no-smoking policy in a lease or rental agreement can terminate the tenancy or evict a tenant who smokes.

On the other hand, if a non-smoking clause is NOT included in your rental agreement, Landlords cannot change current tenancy agreements; they can only include a non-smoking clause in new agreements. In other words, if your current tenancy agreement does not have a non-smoking clause, your landlord cannot legally evict you just for smoking. Tenants should speak to their landlord if second-hand smoke (tobacco or marijuana) from another unit is interfering with the reasonable enjoyment of their home.

How easy is it to evict a tenant for smoking?

It is very difficult to evict a tenant from a multi-unit building for smoking because they could say the smell was not coming from their unit. The burden would then fall upon the landlord to prove the opposite. If someone is allergic or has lung illness and no smoking is allowed due to allergies then the landlord would have a good chance. Usually the landlord would then ask the tenant to move out.

No home is airtight and second-hand smoke travels anywhere and everywhere it can; through open windows or doors, including from a neighbor’s patio or balcony, through electrical outlets, duct work, cable or phone jacks, water or gas pipes and ceiling light fixtures and through any cracks or gaps in floors, walls or ceilings. Some multi-unit buildings share heating and ventilation systems that actually force the tobacco smoke from one unit into another.

I am being exposed to second-hand smoke from another unit. Help!

You may be able to work with your landlord and/or the condo or co-op board members and other residents to create a no-smoking policy for your building. It may take time for your building to become 100% smoke-free.

Here are some steps you can take:

  • Keep a record of the dates and times that you are aware of smoke in your unit, as well as your efforts to solve the problem.
  • Get a letter from your Family Doctor describing how the second-hand smoke is affecting your health and/or the health of your family.
  • If you know where the smoke is coming from and you feel comfortable doing so, talk to your neighbor about the drifting smoke and try to work out a solution. Your neighbors may not be aware that the smoke is a problem for you in your unit.
  • Talk to your landlord or co-op/condo board representatives and other neighbors and seek their support. You are likely not the only person being affected by unwanted smoke.
  • Contact your tenant association, co-op or condominium board to inform them about the issue or to make a formal complaint. They are likely to have the resources to educate and inform tenants, organize tenants and lobby for tenants’ rights. The more they are aware of second-hand smoke as an issue, the better prepared they’ll be to address the problem. Consider starting a petition that can be presented to the landlord to request a no-smoking policy. For more information on how to create a no-smoking policy in your building, visit Smoke-free Housing Ontario .
  • If you are unable to find a solution to the problem and your health and/or the health of your family is being affected you may need to move out. Visit Smoke Free Housing Ontario  to find out more about moving without a financial penalty for breaking your lease and also for smoke-free buildings in the province of Ontario. You may need to contact the Canadian Centre for Housing Rights  or a community legal clinic  to address the matter.

I am a landlord. What are my responsibilities in my smoke-free building ?

Landlords in Ontario have the right to ban smoking in all or part of a building, including indoor units and outdoor patios and balconies. While they cannot change current tenancy agreements, landlords can include a non-smoking clause in new agreements. This means that current tenants are able to continue smoking in their units as they signed a previous tenancy agreement. When those tenants move out and new ones move in, the units can then become smoke-free under the new tenancy agreement.

Landlords in rental properties must act on all reasonable complaints from tenants. If there is proof that a landlord was aware of a problem and failed to take steps to address it there may be grounds for breach of reasonable enjoyment. The landlord should make repairs or changes to the building such as sealing cracks, weather stripping doors, and upgrading ventilation systems.

As a landlord you may want to consider making part or all of the building smoke-free. No-smoking policies are legal and enforceable, and most future tenants want to live in a smoke-free home. For more information on how to make your building smoke-free go to Smoke-Free Housing Ontario’s page for landlords

What about smokers? Are no-smoking policies discriminatory?

There is no such thing as a right to smoke; there is a freedom to smoke but not a right as preserved in Canadian law, the Charter of Rights and Freedoms or the Human Rights Code.

A no-smoking policy is not a no-smoker policy. A person that smokes cannot be refused tenancy or evicted because of being a person that smokes. A no-smoking policy generally means that tenants must smoke outside of the building or off the property; this depends on the details of the buildings policy.

No-smoking policies are normally well supported by the majority of tenants and if everyone respects the policy there should be no issues. If your building wants to put a no-smoking policy in place, try to make sure that people who smoke and people who don’t smoke are included in the meetings or committees.

If you smoke and would like to quit, we can help. For more information go to our quitting page .