What is a No Smoking Provision?
No Smoking Clause is a covenant or provision contained in a residential tenancy agreement whereby a tenant is not permitted to smoke cigarettes, cigars or pipes in the subject rental unit. Some landlords will insert a more specific "no smoking" covenant that forbids other forms of smoking, smoking of marijuana, and/or "vaping" from electronic cigarettes.
The purpose of the no smoking clause is to ensure that the rental unit is kept clean of any residual odours or marks that may be a result of a tenant smoking in the premises. This clause is often inserted in property standards bylaws to prevent smoke-related pollution . Parties to the agreement should be aware that the no smoking clause will generally be enforced regardless if the rental unit is located in a condo unit, apartment building, rental community, detached homeowner, etc.
The following sample clause is platitudinous in rental agreements: "Tenant agrees not to carry on or permit any activities, including without limiting the generality of the foregoing, the making, causing, or allowing of any loud noise or objectionable or offensive behaviour which might annoy, disturb, interfere with or otherwise affect the quiet enjoyment of the Landlord or the other tenants in the residential complex."
The Advantages of a No Smoking Provision
In addition to fostering a healthier life style, the obvious and significant benefit to both the landlord and the tenant is the preservation not only of the premises, but also the preservation of the individual’s health. The question logically arises "What about the person who is not a cigarette smoker?"
In my opinion, the inclusion of a no smoking clause in a rental agreement should not be limited only to those non smokers. It is my experience that even if smoking is allowed that among a tenant population the majority of tenants will respect the rights of those who desire a no smoking environment. Having a no smoking clause also allows for equitable protection for the balance of the population which desire that opportunity for a smoke free environment.
As importantly, it keeps issues from arising in future cases where one tenant complains of smoke odors or particulates affecting them while another tenant responds in defense that they also smoke.
Enforceability of No Smoking Provisions
Courts today are addressing the enforceability of no smoking clauses at an unprecedented rate. Most courts are now concluding that these clauses are enforceable and that their enforcement does not render the lease unconscionable or violate a tenant’s right to quiet enjoyment.
For example, in Sutherland v. Kenora 227054 NT Ltd., 2015 NTSC 16 (CanLII), the tenant claimed the landlord’s no smoking clause rendered her lease document unconscionable and unresponsive to her unique needs as a single-income renter who suffered from asthma. The Supreme Court of the Northwest Territories upheld the no smoking clause, noting that the "no smoking policy was in place when the Lander first saw the apartment and decided to lease it." Instead of precluding her from leasing the unit, the clause served to protect the tenant from adverse health effects associated with second-hand smoke from other tenants. The court thus dismissed the tenant’s claim.
In BGIS Global Integrated Solutions Canada LP v. Dehil Properties Inc., 2015 ONSC 933 (CanLII), the lessee of a commercial lease argued that it would be unconscionable and contrary to public policy to enforce the prohibition against smoking in its office, given that the property is situated across from Toronto’s Air Canada Centre, where up to 20,000 people congregate for public events. Justice Perell disagreed, stating that "the prohibition against smoking in the Premises does not preclude the Tenant from smoking outside." Accordingly, in "any bargain respecting the letting of land, it is a fundamental right of the owner to control its property" and as a "matter of law, any person entering upon the property is required to do so upon that basis."
Similarly, in Goldberg v. Atlantic Towing Inc., 2014 NSSC 412 (CanLII), the Nova Scotia Supreme Court enforced no smoking clauses in the tenant’s residential agreement. The plaintiff-lettes argued the clauses were both unconscionable and void, on the basis that they impaired the quiet enjoyment guaranteed by s. 13(1) of the Residential Tenancies Act. Justice Patrick Duncan disagreed, finding that the lease was not unconscionable and that the disputed clauses were legally valid.
Other Canadian jurisdictions have also upheld no smoking clauses fighting challenges of varying origin, including Quebec (Gosselin v. Immeubles Rhoma Inc., 2010 QCCQ 7537 (CanLII)), Alberta (Huisman v. Saville Community Sports Centre Authority, 2013 ABCA 390 (CanLII)), British Columbia (Parkgate Community Centre Society v. Cheung, 2010 BCSC 113 (CanLII)), Ontario (Hudson v. Kia Canada Inc., 2012 ONSC 4835 (CanLII)), and Saskatchewan (Boomer v. Murray Chrysler Dodge Jeep Ram Ltd., 2015 SKQB 94 (CanLII)). The latter, recently decided on June 4, 2015, reinforced the enforceability of the no smoking clause, adding that "the fact that a tenant might want to smoke does not make the clause unconscionable or the lease agreement unconscionable."
Creating a No Smoking Provision
The wording of a no smoking clause must be drafted with equal attention to clarity and enforceability. A poorly worded clause or one that creates confusion or ambiguity, can leave tenants without real guidelines as to what conduct will be in breach of the provision. It can also potentially leave a landlord with limited or no recourse. With that in mind , any drafted clause should clearly prohibit smoking on the part of any tenant or their guests anywhere within the premises rented. But what else should be included in that clause? A few considerations are listed below.
"Tenant" and "Tenant’s" should be defined in the agreement in order to clarify who exactly is bound by the clause. Should minor children or pets be included in that definition? What about guests? Should it permit smoking only at certain designated areas? Should it go so far as to require the deposit of a full months rent as insurance against illegal smoking by a tenant? How about requiring the tenant to present a written undertaking from all of his/her guests at the time the lease is signed? Although perhaps an extreme measure, prohibiting or at least curtailing smoking can be quite important to the health of tenants and the landlord, as mentioned above. Putting in place the right clause(s) and recourse mechanisms is an important part of planning for success.
How to Respond to Breaches of the No Smoking Provision
Once you have a no smoking clause in your rental contract, you have a long way to go when the tenant begins to smoke inside the dwelling. You then have to start with the process of contacting the tenant and finding a solution to the situation. There is not much you can do if the tenant smokes outside as that is permitted in most contracts, however it is the inside that you really don’t find very appealing. Your first step is to document the first warning that you give the tenant. A single cigarette in the home is one thing, but a full-blown smoking addiction is certainly something that you don’t want to deal with once the tenant starts damaging the property. Although you may not think that a first offense is sufficient enough to warrant documentation, it is best that you do so to avoid further issues down the road when the tenant comes back at you. A key concept to keep in mind here is that the contract is a legally binding agreement between you and the tenant. Just like a lease or rental agreement, the no smoking clause deserves just as much attention and enforcement. Let’s say the tenant decides to give you a flood of excuses to why they should be permitted to smoke and after a couple of weeks, they still are and they start to make more headaches for you. If you didn’t document the initial warnings, you will have little proof to support your claims that the tenant went against the agreement. You may need to take the tenant to court, and in that case it is always beneficial for you when you have some kind of documentation to back you. You need to communicate the steps that are to follow if the tenant does not comply. As stated, this can become a legal situation, meaning you may need to take the tenant to court which could result in termination of the contract. You need to be very clear about whether or not the lease will be terminated if the tenant continues to smoke inside the dwelling. It is a good idea to speak to the tenant in person about the issues at hand and outline the ramifications of violating the clause. Give them the opportunity to quit smoking indoors somewhere along the line so that the problem can be avoided. Outline the severity of this issue and avoid being very harsh or aggressive because if the situation progresses to court the judge will find in favor of the tenant unless there is a lot of documentation to support the landlord’s case. If the tenant does continue to smoke inside, then you need to follow through and take further action. When speaking to the tenant face to face about the situation, you were in charge of the outcome, meaning now you need to be held accountable. The outcome pretty much always results in some kind of mediation and the landlord needs to have the upper hand. If you do decide to end the contract, go through the court process and be certain that you are not violating the landlord/tenant agreement. Follow it to the letter and if the tenant wishes to take you to court it will minimize the problems on your end.
Exceptions and Modifications to No Smoking Provisions
If parties are not able to agree on a no smoking clause for any reason, they may or may not consider a different arrangement. Parties may be open to allowing tenants to smoke in a specific area or may consider whether there are opportunities to have a designated smoking area. There are also debates about how to best handle whether electronic cigarettes will be permitted. If smoking is allowed in the premises, parties may wish to consider specific restraints such as no smoking around children, special care to be taken in respect of fire alarms and other specifics . If a designated smoking area is permitted, parties will want to determine where an appropriate area should be located. Other questions to consider include whether it is acceptable for smokers to travel on common areas or such things as whether outdoor smoking areas or balconies are permitted. Depending on changes in the law at your location, parties may face pressure to agree to a virtually no smoking clause. There are certainly pros and cons to restricting smoking by landlords or new tenants.