Smoking complaints – they happen in every condo. The question of smoking in condos continues to fuel the flames of conflict for condo dwellers. As a result, condo boards should understand what they can do when complaints arise. Here are 10 things condo boards should know about smoking complaints.

1) Smoke Free Buildings to Curb Smoking Complaints

A broad ban on smoking is unlikely to hold weight if introduced as a rule or bylaw. So it’s not a good strategy to handle smoking complaints. However, an amendment made to your condo declaration can be passed if you receive 80 percent of the owners votes. Just remember current residents are entitled to be “grandfathered” since they moved in before the rules were in place.

2) The Smoke Free Ontario Act

Smoking is illegal in indoor common areas according to the Smoke Free Ontario Act. Smoking or even holding a lit cigarette is not allowed in common areas of any condo, other than uncovered outdoor common areas.

3) You Don’t Have to Accommodate Smokers

Even under the Human Rights Code, no one can claim they have a right to smoke, including their own unit. Therefore, your board does not have to accommodate smokers.

4) Smoking and Nuisance Rules

Condo nuisance rules help ensure condo residents’ rights to quiet enjoyment. In legal terms, a “nuisance” presents itself when a person unreasonably interferes with another person’s rights. Because smoking creates an odour, it can be included in your nuisance bylaws and help you manage smoking complaints.

5) Responding to Smoking Complaints

Some members on the board of directors might regard smoking complaints as unsubstantial and do little to respond. However, according to Subsection 17(3) of the Condominium Act, you have a duty to take reasonable steps to ensure each resident complies with your condo corporation’s governing documents. Even if you don’t have specific smoking bans, smoking falls back to nuisance bylaws. Therefore you must check for smoke transmission and should it exist, take steps to remedy the situation.

6) Smoke and Common Element Deficiencies

If smoking complaints seem frequent, consider the possibility you might have a common element deficiency. For example you might discover smoke is transferring due to a poorly insulated demising wall. This can get complicated as such deficiencies require repairs that must be made if the obligation for such repairs are included in your declaration. However, if an owner(s) is causing the smoke issues, they could be on the hook for those costs. Sealing points where leaks allow smoke to travel can at least reduce the odours.

7) Trying to Change Resident Behaviour

With repeat offenders, your board has the right to demand they change their behaviour. The Condo Authority of Ontario (CAO) can assist should the situation elevate.

8) Claims of Sensitivity to Smoke

Condo boards must accommodate residents with disabilities and their needs according to the Human Rights Code. The Human Rights Code has priority over the Condo Act. As a result, those requiring a smoke free environment tend to win out over those arguing they have a right to smoke.

9) Fire Hazard

Complaints of smoking on balconies can be addressed with Section 117 of the Condo Act which states individuals cannot present risks that can damage property or cause injury.

10) Setting a Precedent

Boards should view each one of the smoking complaints individually. Because condo boards can’t really set a precedent, you can approach each complaint on a case by case basis. As a result you ensure fairness.

While responding to smoking complaints can be prickly, an understanding of the laws and the acts that support them can help.

CPO Management Inc. is a property management company in Toronto and the GTA specializing in helping condo boards build better condo communities. Reach out to us today to learn more about our condo services and how we can help manage smoking complaints.