Landlords > Common Questions
For more information see legal opinion.
Yes. Landlords have the legal right to designate specific apartment units, houses, secondary suites or entire buildings as smoke-free and advertise the smoke-free status to the public.
Landlords may legally include “no-smoking” clauses in all new tenancy agreements to ban smoking in individual units, outdoor patios and balconies, or any areas of the residential property. All existing tenants must be “grandfathered” (exempted) during the length of their tenancy or unless they consent in writing to the new policy. (Also see legal opinion)
For your reference, legal wording for a no-smoking clause in a tenancy agreement in BC:
"It is a material term of this tenancy agreement that smoking of any combustible material in the rental unit or on the residential property is prohibited."
Effective March 31, 2008, the Tobacco Control Act in British Columbia was amended to introduce a province-wide ban on smoking in public places, including:
Note: This legislation does not apply to individual units or balconies in apartments or condominiums. It specifically avoids any attempt to regulate smoking in private residences.
Additionally, municipalities have the authority to pass smoke-free bylaws that exceed the new provincial smoke-free laws. Municipalities like Vancouver, Richmond and Surrey have enacted stricter buffer zone requirements than the province and more are considering doing the same. Contact your municipality to find out more.
Yes. If a no-smoking clause is written into the tenancy agreement or lease, a landlord can issue a notice to end the tenancy if it is proven that the tenant has not complied with the terms of the tenancy agreement. The landlord must give the tenant a letter telling them that they are in violation of the tenancy agreement. This letter must give the tenant a reasonable time to cease smoking in accordance with the tenancy agreement and tell the tenant that failure to do so will result in the tenancy ending (eviction).
The landlord must make sure a proper Notice to End Tenancy for Cause is served on the tenant. If the tenant disputes the notice, the landlord must provide evidence to prove the reasons for ending the tenancy.
There is no inherent right to smoke in law, and smokers are not a protected class under The Canadian Charter of Rights and Freedoms. Landlords own the property and have the ability to set policies to protect the health of their residents or protect their property, so long as the policy does not conflict with federal or provincial laws. Banning smoking is similar to adopting other policies like “no pets” and ‘no barbeques’.
Further, in tenancies where smoking is allowed, the right to smoke is not absolute and is limited by the right to quiet enjoyment of neighbouring tenants. While a tenant that smokes chooses to accept the risks associated with smoking, he/she doesn’t have the right to require that others in the building share in those risks.
While it is not clear that tenants have the right to a smoke-free living space, the Residential Tenancy Act states that tenants are entitled to quiet enjoyment of their premises, which includes the right to freedom from unreasonable disturbances. This could include being free from breathing noxious or dangerous substances such as second-hand smoke on a frequent and prolonged basis. (See quiet enjoyment)
All tenants are entitled to quiet enjoyment of the rental unit, including freedom from unreasonable disturbance from other tenants. The landlord is responsible for ensuring that the tenant has quiet enjoyment.
If smoke from neighbouring units is significantly bothering other tenants, the second-hand smoke can constitute a breach of quiet enjoyment. Addressing the issue of second-hand smoke is similar to addressing the issue of loud music. Playing music is allowed in private units, yet when it’s played too loud and interferes with the quiet enjoyment of other tenants, landlords can take steps to stop this intrusion, including last resort steps to end the tenancy. It is important to stress that there is a high threshold for what is considered “unreasonable disturbance” when referring to second-hand smoke, and the mere presence of second-hand smoke is not enough. It must be frequent and ongoing.
If tenants can show that second-hand smoke has infiltrated their home and has resulted in a significant disturbance of their quiet enjoyment, and the landlord has failed to take reasonable steps to address this problem, such tenants may apply to the Residential Tenancy Branch for compensation, including reduction of rent for the period that the tenant did not have full use and enjoyment of the premises; or monetary damages, such as moving costs.
A landlord who is notified of a breach of quiet enjoyment due to second-hand smoke, confirms that this is occurring and is causing a significant disturbance to the affected tenant(s), must take reasonable steps to ensure that the breach does not continue.
The BC Residential Tenancy Branch Policy Guildelines state that the smoke infiltration must be severe enough to cause an unreasonable disturbance and not a mere temporary discomfort or inconvenience. It must be frequent and ongoing. This is especially important if a landlord is seeking to evict a tenant for cause. (See quiet enjoyment)
Adopting a no-smoking policy will provide landlords with a unique marketing advantage in British Columbia. A 2008 survey of 1000 British Columbians living in apartments and condominiums found that the majority of respondents would prefer to live in buildings that banned smoking in all units and balconies. Further, 85% of British Columbians do not smoke, yet there are few available smoke-free buildings for those who want and need to live smoke-free.
In 2006, Manitoba’s largest landlord, Globe General Agencies, recognized this untapped marketing opportunity and implemented a no-smoking policy for all new tenancies in their apartment buildings in Manitoba, Saskatoon, Edmonton and Montreal. They found it was easy to do, reduced costs, and their turnover rates have dropped.
Going smoke-free is good for the health of residents, and good for business. Going smoke-free will:
Yes. Exposure to second-hand smoke is more than a nuisance. It is a serious health hazard that can lead to disease and premature death in children and non-smoking adults. There is no safe level of exposure to second-hand smoke, and even brief exposure can be harmful to people’s health.
Second-hand smoke is a major problem for many BC residents living in apartments and condominiums, especially those who suffer from chronic health conditions such as heart disease, asthma, allergies, diabetes, and respiratory illnesses. Landlords can play a significant role in eliminating a major cause of illness in the home and a major cause of preventable death in Canada by going smoke free in their buildings.
No. A no-smoking policy is just like any other policy or rule that a landlord can enforce. Plus, enforcing a no-smoking policy will likely be a lot less time consuming than mediating disputes between smokers and non-smokers where there is no policy in place.
According to some landlords, no-smoking policies are largely self-enforcing. Also, once the policy is adopted, it’s more likely that tenants will inform landlords of any breaches of the policy. (See Enforce an existing no-smoking policy)
Air filters, purifiers and ventilation systems cannot eliminate second-hand smoke. Some of the smoke and larger particles from the air may be removed, but they will not remove the smaller particles or gases found in second-hand smoke.
The American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE), the world's leading association of heating and air conditioning engineers whose indoor air quality standards are followed internationally, considers that there is no acceptable ventilation system that can protect individuals exposed to second-hand smoke.
James Repace, an internationally recognized second-hand smoke physicist, conducted a review for ASHRAE on controlling tobacco smoke. He concluded that, “ventilation technology cannot possibly achieve acceptable indoor air quality in the presence of smoking, leaving smoking bans as the only alternative.”
There are many resources available in BC to help people who are interested in quitting smoking. British Columbians can access FREE QuitNow Services, including an internet quit smoking service at www.quitnow.ca, or QuitNow By Phone [1 877 455 2233] a toll-free telephone quitline available 24/7 and staffed by Registered Nurses.
For more in-depth information about the legalities of adopting smoke-free policies in BC, click here. (See legal opinion)