Quiet enjoyment, defined in simple non-legalistic words, is not the absence of noise, but rather the presence of peace. The right or covenant of quiet enjoyment has been part of the common law for centuries and is an implied part of every tenancy. In BC, this right is enshrined in s.28 of the Residential Tenancy Act, which reads as follows:

28. A tenant is entitled to quiet enjoyment including, but not limited to, rights to the following:

1. reasonable privacy;
2. freedom from unreasonable disturbance;
3. exclusive possession of the rental unit subject only to the landlord’s right to enter the rental unit in accordance with section 29 [landlord’s right to enter rental unit restricted];
4. use of common areas for reasonable and lawful purposes, free from significant interferences.

The right to quiet enjoyment thus protects tenants from unreasonable disturbance and any serious interference with their tenancy. (See legal opinion) A landlord must provide quiet enjoyment to all tenants. All tenants must ensure that their actions or the actions of their guests do not unreasonably disturb other tenants.

Yes, in certain circumstances, second-hand smoke can constitute a breach (or loss) of quiet enjoyment, even in buildings where smoking is allowed in private units. (See legal opinion) Landlords should be aware that the ability to smoke is not absolute and is limited by the right to quiet enjoyment of neighbouring tenants. If tenants can show that second-hand smoke is infiltrating their home from a neighbouring unit or balcony on a frequent and on-going basis, and substantially interfering with their quiet enjoyment, then landlords have a responsibility to remedy the situation.

It is important to stress that there is a high threshold for what is considered “unreasonable disturbance” when referring to second-hand smoke. The mere presence of second-hand smoke is not enough; it must be significant, frequent and ongoing. Temporary discomfort or inconvenience does not constitute a breach of quiet enjoyment.

A landlord who is notified of a breach of quiet enjoyment due to second-hand smoke should first investigate to ensure the breach is in fact occurring, and is serious. If so, the landlord must take reasonable steps to ensure that the problem does not continue.

Further, Landlords should be aware that where a tenant can show that the landlord has failed to take reasonable steps to address an ongoing problem caused by second-hand smoke travelling between units, such tenant may apply to the Residential Tenancy Branch (RTB) for an “order requiring the landlord to provide quiet enjoyment and/or compensate tenants for their loss of quiet enjoyment”. (See below for tips on addressing complaints of second-hand smoke)

Read an excellent report that explores what constitutes a breach of quiet enjoyment and what elements must be present to prove a breach of quiet enjoyment.

This section applies to:

1. Buildings that do not have a no-smoking policy in any of the units. Second-hand smoke from one unit is infiltrating a neighbouring unit and significantly disturbing their quiet enjoyment.
2. Buildings that are designated as smoke-free, but are converting to no-smoking status over time. The smoke from grandfathered units is infiltrating the homes of other tenants and disturbing their quiet enjoyment.

Note: If tenants are smoking in violation of a no-smoking policy, go to Enforcement section

Many landlords are reluctant to address complaints about second-hand smoke where smoking is permitted in the rental units. But they would be wrong to assume that they have no authority to address these complaints. The BC RTB has developed Policy Guidelines on the Right to Quiet Enjoyment. These Guidelines do not include second-hand smoke as an example of the type of interference that could result in the loss of quiet enjoyment. The guidelines do, however, include other examples of what could be considered a loss of quiet enjoyment – such as “unreasonable and on-going noise.”

Addressing the issue of second-hand smoke is similar to addressing the issue of loud music. While playing music is allowed in private units, when it’s played too loud and significantly interferes with the quiet enjoyment of other tenants, landlords can take steps to stop this intrusion, including last resort steps to end the tenancy. Complaints of second-hand smoke can be considered a breach of quiet enjoyment and should be addressed accordingly.

The Residential Tenancy Act is silent on what steps a landlord is required to take to address conduct by one tenant that unreasonably disturbs a neighbouring tenant. Previous decisions under the Act, as well as the Residential Tenancy Branch (RTB) Policy Guidelines, do provide some guidance, and indicate that the landlord is required to take reasonable steps necessary to address a breach of quite enjoyment. The RTB guideline states: “A landlord would not normally be held responsible for the actions of other tenants unless notified that a problem exists, although it may be sufficient to show proof that the landlord was aware of a problem and failed to take reasonable steps to correct it.”

What are considered reasonable steps will vary with the facts of each situation. Past RTB dispute resolution decisions have varied from attempts to broker a compromised solution, limiting the smoking by a tenant to certain hours, offering the affected tenant alternative accommodations, and evicting the smoking tenant. (See legal opinion).

Tips for addressing complaints from tenants about excessive smoke infiltrating their homes:

• Identify the source of the smoke and determine if there are remedies that could minimize the smoke transfer, such as: (See Quick Fixes to Reduce Smoke Transfer)

• Install weather-stripping around doors
• Ensure the building ventilation system is working efficiently
• Insulate the air spaces around plumbing pipes
• Insulate and place covers over electrical outlets

• If the smoke cannot be eliminated, talk to the smoking tenant to see if you can work out a negotiated solution to address the problem. Could the tenant smoke in another area or outside? If an agreement is reached, it is important to put it in writing for future reference. Have the tenant sign a copy of the dated letter from the landlord to tenant, confirming the discussion and the tenant’s agreement to abide by the negotiated agreement.

• Ask the tenant(s) who are suffering from the smoke to provide you with information concerning the severity, frequency and impact of the smoke. The more information you collect, the easier it will be to resolve the problem. If possible, ask the tenant to keep a log that includes:

• How the smoke is entering the unit and how often?
• What steps the tenant has taken to resolve the problem?
• What impact the smoke has had on the health of the tenant and/or family members? Do they have letter from physician?
• How has the problem denied the tenant the full use and enjoyment of his/her apartment?
• Have others in the building complained about the smoke?
• Has the tenant provided any supporting evidence from friends or other tenants who can verify the amount and frequency of the smoke entering the unit?

• If there is evidence that the smoke is significant and ongoing and a negotiated settlement cannot be reached, consider issuing a “breach letter” or “caution notice” advising the smoking tenant(s):

They have disturbed the quiet enjoyment of other tenants. Give specific examples of the breach of quiet enjoyment;

To cease the violating behaviour. Include a specific statement regarding the compliance required, such as “cease smoking anywhere on the residential property” or “confine your smoking to the designated area of the property”; and

That failure to comply could result in a Notice to End Tenancy.

Note: A caution notice is legally required only if the tenancy is being ended for a breach of a material term of the tenancy agreement, e.g. a no smoking clause. However, it is a recommended practice to issue a caution notice for any breach that could lead to a Notice to End Tenancy.

Access online form at the Residential Tenancy Branch website.