What is a No Smoking Provision?
A no smoking clause is a specific provision or section that is included in a lease (or tenancies agreement) whereby a tenant agrees that he will not smoke while in the rented premises. The clause should clearly set out the area that he is not permitted to smoke, and if the building has a shared roof top patio or garden area, the clause should make clear if he is permitted to smoke there.
The purpose of the clause is very clear. Smoking is known to produce second-hand smoke that is harmful to the health of others. Smoking also produces a very strong smell that can be infused into walls, furniture and clothing. The smell of smoke can diminish the comfortable enjoyment of a tenant.
Depending on the wording of the clause, it may impose responsibility on the tenant for damages caused as a result of smoking in the unit. Even if it was not expressly spelled out in the clause , the landlord can often prove that there was a breach of the agreement by showing that the tenant failed to take reasonable care of the leased premises, so as to cause damage, by the tenant’s own actions or those of his guests or invitees (certainly the tenant and his guests/ invitees that smoke).
Most landlords have to deal with tenants that smoke. As a result, many landlords have taken the steps to ban smoking in the premises that they are renting out, in order to keep the units free of the unpleasant smell associated with smoking.
On the other hand, there are smokers who insist that they will only rent those units that will permit them to smoke. This can set off a feud between a tenant’s contractual or personal rights, and the landlord’s right to provide a habitable living environment.
Advantages of a No Smoking Policy
There are many reasons for landlords of multi-family residential complexes to include smoking prohibitions in lease agreements. First, creating a smoke-free environment enhances the health and safety of tenants and minimizes property maintenance disputes. Typical smoke-free environments limit smoking in units, in common areas (including leasing offices and fitness centers), and in the exterior grounds of the property. Landlords benefit in countless ways from these policies. Initially, liability is reduced in the areas of health and safety. The frequency and volume of cigarette butt litter decreases, along with the fire risk posed by smoking within a residential complex. Leasing offices and common areas are also easier to maintain and more attractive to tenants as a result. Maintenance costs are similarly decreased due to the reduced frequency of HVAC filter changes as well as the elimination or reduction of the periodic cleaning needed for the interior of units and the exterior of the property.
Legal Considerations
The legal considerations that a landlord must consider when implementing a no smoking clause are confined to the legal requirements in the jurisdiction in which the property is located.
In Ontario, the Smoke Free Ontario Act, 2017 makes it illegal for anyone to smoke cigarettes or other substances (including marijuana) within 20 meters of an entrance to any part of a building used as a common area, such as a lobby, stairwell, snack bar or hallway. The provisions of the Smoke Free Ontario Act do not extend to the areas around entrances to the individual units themselves. Similarly, in residential buildings where balconies are permitted, the Smoke Free Ontario Act does not restrict smoking on those balconies. Whether a landlord can restrict smoking on balconies would be subject to restrictions in the applicable property standards code, similar to the recent amendments to the Toronto Property Standards Code that restrict smoking cannabis and other substances on balconies.
In Ontario, no smoking clauses in Ontario Residential Lease Agreements (Form 400) on or after April 30th of this year are not enforceable. The Tenant Protection Act, 1997 prohibited a landlord from entering into an agreement with a tenant that would have the effect of waiving or dispensing with the tenant’s obligation under the Residential Tenancies Act (RTA). The Residential Tenancies Act, 2006 has similar provisions. Therefore, no smoking clauses in leases signed on or after April 30th of this year are enforceable. Smoking related provisions entered into prior to that date are enforceable, but only against the extent of the smoking. That is, a tenant cannot be taken to court for smoking a tobacco product, but may be taken to court for a different product that may produce more stale smoke. A landlord must also consider its court system and which forum is best for the landlord in its jurisdiction to enforce a clause, if necessary, for example propertied in Toronto are better dealt with in Small Claims Court.
Drafting a No Smoking Clause
No smoking clauses must be carefully drafted to provide the landlords with certainty and control. The usual ‘dwelling unit and common elements’ prohibition is too vague. Start with the words ‘Residential unit and common elements.’ Be careful of defining ‘common elements.’ The declaration may define common elements differently from the RTA. The prohibition should clearly include such areas as lobbies, elevators, outside stairwells (if enclosed), and parking garages. That means specific reference to parking garages in the no smoking clause. Reference to outside balconies is probably unnecessary. If the common elements will be deeded to the corporation and residents have the right to exclusive possession of the balcony, the no smoking clause should clearly say that the smoking prohibition does not apply to exclusive use balconies. Balconies are such a prime smoking spot that it is unlikely smokers will obey the no smoking clause when it says ‘common elements.’ Giving notice of a violation of these clauses to all residents places a burden on the corporation that most apartments don’t need. This is a building-specific problem. Owners of detached homes could complain that this encroaches on their exclusive use area. But in an apartment building a resident could hear and smell someone in the next building smoking on his/her balcony, and that would be the source of the nuisance. If the pollution drifts into a dwelling unit, the consent of only one resident is needed, not consent from every other resident. The no smoking clause should also include prohibitions on the cigarette butts being thrown on balconies or other common elements. It should also prohibit the landlord or its agents from repairing or renovating a unit where the resident refuses permission unless the repairs are urgent.
Enforcement and Related Concerns
While the implementation of such a clause seems straightforward, there are often workable challenges for the enforcement of a no smoking clause. Two of the most common involve what action a landlord takes when learning of a tenant’s violation of the no smoking clause and the viability of the landlord’s decision to attempt to enforce the no smoking clause in a condominium or commercial lease. The following sections will provide a guideline for addressing each of these challenges.
In terms of enforcement options, landlords are encouraged to opt for the least severe consequence as a first step. The specific circumstance should guide which option is the least severe, but this often means giving the tenant a verbal warning. If the tenant does not respond positively then a written warning is sent to the tenant’s unit. The letter includes the no smoking clause , outlines the full details of the violation and provides a timeframe for the tenant to cease their activities. If the tenant does not respond positively to either of these options then the landlord has the option to commence legal proceedings for a breach of lease at the Landlord and Tenant Board or at Small Claims Court in an apartment building or commercial setting.
A common misconception that landlords should be aware of is that their right to enforce a no smoking clause is reduced if they have given the tenant permission for friends or family members to visit. Considerable debate surrounds whether or not having a guest in the tenant’s apartment constitutes a breach of the no smoking clause. The interpretation of the clause is key to this discussion because it will depend on the specific wording. If the no smoking clause includes language that explicitly prohibits visitors from smoking on the premises then having a guest that is smoking is a breach of the lease. The interpretation of the clause should be based on the wording as well as the intention of the landlord.
Another common issue that arises is the viability of enforcement in a condominium or commercial setting. In a condominium it is important to note that the management of the building is guided by a set of rules and regulations as well as the Condominium Act, 1998. Any enforcement action must be authorized by either the declaration or the by-laws or rules of the condominium corporation including enforcement fees. In contrast, in a commercial setting the lease with the tenant governs the relationship, however the tenant’s business with respect to the use of the premises must comply with the City’s zoning by-law.
Regardless of the challenges that may arise, a solid no smoking clause will clearly outline the intention of the landlord and list sufficient consequences for any violations. This will reduce the likelihood of any confusion that may lead to time-consuming legal disputes.
Options Beyond a No Smoking Provision
Not all landlords want a blanket no smoking clause in their lease, but are unsure of the alternatives. In certain cases, a designated smoking area may be appropriate. Designated smoking areas can be made more appealing by placing them far away from entrances, or covering the areas, to protect them from the elements. If a building is already smoke-free, consider creating another building on the property for designated smoking. Whatever type of designated smoking area is created, if any, it is important, especially in multi-family residential buildings, that such areas are located a safe distance from exits and other flammable sources.
Another alternative is to install air purification systems in the building. Air purification systems are not cheap to install, and in high-rise buildings, the cost and methods for preventing exposure to smoke can be different in this regard. Some landlords may find the cost prohibitive, but if the building is already equipped with an air filtration system, it is recommended that landlords at least inquire about such a system. Another alternative to banning smoking is to abate the effects of potential smoking tenants in advance of entering into a lease. 10-20% of potential smokers will quit if asked to do so in the presence of incentive, such as a monetary payment, reduced rent, a parking space, etc.
Tenant Responsibilities and Rights
The tenant shall be required to comply with and conform to the no smoking clause, which is then normally set forth in full in the lease or in an exhibit attached to the lease. In addition to the obligation to not smoke in a unit, the tenant shall also abstain from smoking in all common areas. This duty extends to all tenants, as well as their guests, including guests on a temporary basis who stay in the unit for a vacation or anything akin to that. Tenants who have special circumstances that warrant an exception from the general ban on smoking should negotiate for specific, written language in their lease that would exclude them from the provisions of the no smoking clause . For instance, a tenant may have a legitimate medical reason that requires them to smoke for their health conditions, or they may be proposing to obtain legal distillations. Whatever the reason, if the tenant makes their needs known before signing the lease, then it may be possible to work out some sort of exception. A tenant should always bear in mind, however, that the most important factor in such discussions will be whether the exception is appropriate and affordable to the landlord.