Why You Want a No Smoking Clause
Many landlords, for both practical and legal reasons, feel it is in their best interest to add a no smoking clause to the lease agreement. Some of the reasons include:
Risk of Fire
If there is an accidental fire caused by a tenant who is smoking and is found to be in violation of the no smoking clause, the landlord will have a much stronger case in claiming damages against that person.
Allergens and Odors
Many people are allergic to cigarette smoke or report that they get reoccuring sinus infections because of the smell of cigarette smoke in a building; so it is only fair that those non-smokers not be subjected to your tenant’s bad habits .
Neighbors
You may have non-smoking tenants who reside in the same building as the individual who likes to smoke. It would be unfair to have your other tenant stay at home, trapped by strong offensive odors that come from another unit.
Attract a Higher Renter
Depending on the area, your rental may be more attractive to non-smokers if you prominently display a no smoking clause in the rental agreement.
Attract a Higher Price
Because a non-smoking renter might pay more for the enjoyment and peace and quiet of a smoke-free building, you may get a higher price.
The Law Regarding Smokers and Tenants
The issue of smoking, particularly vaping, can create potential legal pitfalls in a rental accommodation.
As noted below, smoking in a rental property can give rise to a number of potential claims. Some claims may arise from landlord/tenant situations but the extent of the landlord’s claim for breach of contract is limited.
Landlord/tenant situations If a tenant breaches the terms of their tenancy agreement in respect of smoking, the landlord may have a claim for damages for breach of the tenancy agreement. However, unless the tenant has caused damage over and above normal wear and tear, the damages are likely to be quite small. It is not clear in which circumstances a landlord might be entitled to an award of punitive damages. But remember that a landlord may also be entitled to evict the tenant and reclaim possession of the premises on grounds that the tenant breached a material term of the tenancy agreement, thus allowing the landlord to terminate the tenancy agreement after providing the tenant with all appropriate notices.
Where the tenant causes damage over and above normal wear and tear, the landlord may make a claim against the tenant’s insurer. If the tenant does not compensate the landlord for the damage that the tenant has done to the property, the landlord may make a claim against the tenant for breach of contract, for example where the tenant failed to pay for the damages or was not properly insured. There is a corresponding obligation owed by the landlord to exercise reasonable efforts to re-rent the premises (assuming that the tenant’s lease was terminated). The effect of this duty, in some provinces, is that a landlord may be limited to recovery of damages for the period during which the premises are actually rented or are available for re-renting. Other jurisdictions may allow landlords to claim damages up to the balance of the lease term, subject to the obligation to re-rent the premises in a timely manner.
Smoking may also be a breach of a tenant’s duty to mitigate by continuing to maintain a unit to a reasonable standard. That is, a tenant’s deliberate smoking in a unit may harm the re-renting of that unit – or at least lead to a reduction in the amount of rent that the unit could re-rent for – and the tenant may be liable to pay the landlord damages for that reduction.
If you are a landlord, you will want to take precautions. First, do your due diligence and determine whether the tenant has violated the rules in the past. If you are a tenant and you violate the rules, you have to expect consequences.
How to Write a No Smoking Clause
In order for the "No Smoking" clause or sub-clauses of a rental agreement to be enforceable, the following items must be contained within the clause or sub-clauses:
i) A definition of "smoking". In most cases, this may be a straight-forward definition, such as "the inhaling and exhaling of smoke", however, in other cases, it may not be so straight-forward. For example, as vaping continues to grow in popularity, landlords who are seeking to enforce a no smoking policy may wish to include a definition of "smoking" that specifically includes vaping.
ii) Whether the no smoking policy is to apply to the common areas of the building, the unit itself, or the immediate area surrounding the building. In some cases, tenants may be allowed to smoke on their balcony, whereas in other cases, the landlord is seeking to prohibit smoking on the entire premises (other than interiors of motor vehicles).
iii) Whether the no smoking policy will be applied to guests or invitees of the tenant. While it is easily justifiable for tenants to bind themselves and their own invitees to a no smoking policy, it may be harder for a landlord to enforce a policy against the guests of tenants to ensure that their guests do not smoke.
iv) A tenant’s obligations in the event that they have visitors who smoke on the premises. Many residential leases contain indemnification clauses which would put unfair liability on a tenant for a guest’s violation and would overextend a tenant’s obligations under the agreement. In this way, tenants who rent units in a building with a no smoking policy would be held responsible for a recurring violation of the policy, when whether or not the no-smoking policy was violated was beyond the tenant’s control. This can be avoided by more narrowly defining the tenant’s obligations and liabilities in regard to violations of the no smoking policy.
v) Reasonable steps that the tenant can be expected to take in order to enforce the no smoking policy. For example, if the tenant is entitled to use the balcony, and their guest is smoking while on the balcony, require the tenant to require their guests to smoke in an area designated by the landlord outside of the unit before the tenant is entitled to re-enter the premises. Alternatively, a tenant could be permitted to give an immediate verbal warning to their guest(s) and then be required to call the landlord if the guest continues to ignore the no smoking policy.
vi) A protocol for enforcement, including application and amendment of the no smoking policy. For example, how is a tenant to give notice to the landlord that the tenant is smoking on the balconies, and how will the tenant be notified of any change to the no smoking policy?
Enforcement of a no smoking policy generally requires two elements; the ability to monitor compliance with the policy and the will to act in the event that the policy is violated. These two elements can be found in property that is fully monitored by video surveillance with no expectation of privacy and is entirely subject to the discretion of the Landlord and Property Manager. In many rental communities, two elements cannot be found in a non-intrusive manner due to the legal expectations of privacy, expectations of a reasonable amount of privacy due to a residential tenancy in the case of balcony, balcony door and window, or the ability to establish and maintain strong relationships with all tenants or enforce the policy equally amongst all tenants.
What To Do if the No Smoking Clause is Violated?
So, how do landlords enforce the "No smoking clause?" Certainly enforcement is possible by way of mediation or litigation, particularly a breach that is causing damage to the premises such as odor, mold, and soot. For a breach that is causing nuisance, like frequent unexpected visits from the fire department, it is likely best to give the tenant a warning with time to cure. In addition, the landlord can make a note in their landlord ledger of the details surrounding the breach for a future eviction . Easiest of all is to put in place a mechanism to find these problems ahead of time. Be sure there is a clear process where notes and observations about the tenants are kept so that landlord’s memory is documented if a mediation or a legal proceeding is necessary. Reviewing the landlord ledger and asking employees for any updates on violations at the time of rent collection is always good practice.
Tenants Rights and Obligations Regarding No Smoking Rules
For tenants, the question of whether or not to agree to a no smoking clause in a rental agreement may be less about the law and more about them. Many tenants appreciate the opportunity to live in a smoke-free environment, particularly so if they have sensitivities to smoke or if they are the head of a family with children. In cases such as these, landlords may have tenants lining up to sign a rental agreement containing a "no smoking" clause. However, in the event that the tenant smoking is a spouse or roommate of the tenant, the situation may become more complicated. A tenant may fear that refusing to sign the rental agreement containing the "no smoking" clause may end in eviction.
However, not all tenants welcome the "no smoking" clause. Further, it can be difficult for tenants to know whether a "no smoking" clause is actually advantageous for them. If the landlord is a good person, choosing not to smoke and signing the "no smoking" clause is likely an affordable idea that will reduce the likelihood of negatively affecting their health and financial situation by having to move to a new home. However, if the landlord is bad, the tenant may feel that they are being bullied into signing an agreement that does not suit them personally.
Even when a tenant signs a rental agreement, it is important that the term "no smoking" be defined clearly. Tenants should never assume that "no smoking" means no smoking marijuana, "no smoking cigarette" or no smoking hookah. Where the term "no smoking" is vague, the tenants may end up in a dispute with their landlord which they would prefer to avoid. Disputes in Ontario about these issues are not typically resolved through a straightforward legal process. Most often, they are resolved by the parties renegotiating their agreement which usually leads to tenants losing before winning, i.e., signing an agreement that is not in their personal best interest.
Case Histories About the No Smoking Clause
In the following scenarios, a landlord used a no smoking clause effectively while a tenant was held responsible. Scenario 1 – Lease clause upheld nonsmoker not permitted to smoke after signing the lease In Mackenzie v. Finestone (No. 3), 2006 CanLII 32543 (ON CA), the appellant signed a lease on July 8, 2005 and was given occupancy on May 31, 2006. An oral agreement was made that she would be permitted to smoke on the balcony from time to time, notwithstanding the lease clause. She did in fact smoke at the apartment, without complaint from the landlord (probably because the landlord lived in the apartment above Ms. Mackenzie) for almost one month after she moved in. He then issued a notice of termination and sued for damages. Based on the evidence before it, the trial judge found in favour of the landlord, awarding obviously significant damage costs. On appeal, the appellant identified a number of significant errors in law which were acknowledged by the court. However , the lack of breach was not one of them. Based on the evidence before her, the trial judge quite properly did find the tenant in breach and the appeal court upheld that decision. Scenario 2 – Lease clause upheld and non-smoker evicted In Mielec v. Segovia, 2010 CanLII 7977 (ON LTB), the tenant stated she did not smoke, did not permit smoking on the balcony where her unit was located and that she had complained to the superintendent about other tenants smoking on balconies. However, witnesses presented by the owner testified that she had seen the tenant smoking on several occasions on the balcony. On balance, the Board found the witnesses to be credible, including the superintendent. The landlord’s witness stated that the tenant reluctantly admitted she had smoked on the balcony. At another point, she said she would only smoke if it was raining. Her denial was not credible.