If you are a strata resident suffering from second-hand smoke exposure in your home, you may want to consider collecting information about the source, extent, frequency and impact of the problem before approaching your smoking neighbour or strata council. Taking an informal approach at the beginning may result in a satisfactory resolution to the problem, and may be less expensive and less time consuming than initiating more formal measures, such as arbitration or lawsuits.

Document the source and extent of the problem
Consider using this sample resident log to track your efforts to address the problem.

• Identify how the smoke is entering your unit i.e. through your bedroom window; when you turn on your bathroom or kitchen fan, from the electrical outlets.
• Determine where the smoke is coming from i.e. neighbour’s balcony, neighbour’s inside unit, outside smoking area or some other channel.
• Identify how often the smoke enters your unit on a daily or weekly basis? Do you smell the smoke all the time, at certain times of the day – list the dates, times and frequency of occurrences.
• Identify when the problem started? Did you start smelling the smoke as soon as you moved into your unit? Did you notice the smoke when a new resident moved in?

Document the health impacts on you and/or your family

• Document symptoms or illnesses caused by the smoke infiltrating your home. Symptoms may include asthma attacks, headaches, burning and watery eyes, sore throats, bronchitis, ear infections, heart problems, to name just a few.
• Indicate if the smoke is worsening a pre-existing health problem such as asthma, allergies, heart disease, high blood pressure, fibromyalgia, or cancer.
• Indicate whether the smoke seeping into your home is causing anxiety or fear due to the potential or actual health impacts on you or your family members.
• Indicate if you have a newborn in the home. Babies who are exposed to second-hand smoke have a higher risk of dying from Sudden Infant Death Syndrome (SIDS).

Document interference with the use and enjoyment of your home

• Has the smoke significantly interfered with the use and enjoyment of your home?
• Have parts or all of your home become uninhabitable at times?
• Are you forced to stay out of certain rooms because of the smoke?
• Are you unable to open your windows or balcony door?
• Are you unable to use your balcony because of the smoke?
• Are you unable to use your fans or heating system?
• Have you been forced to leave your home on certain days or at specific times to avoid the smoke?

Collect supporting evidence

• Obtain a copy of your bylaws filed at the Land Title Office. There may be additional bylaws concerning behaviours or nuisances that will strengthen your case.
• Obtain written proof from neighbours, friends and family concerning the amount and frequency of smoke entering your home. The more people who can verify your complaint, the stronger your case.
• Obtain a letter from your physician to verify that the smoke is making you or your family members sick, or aggravating an existing condition or illness.
• Obtain information on the dangers of second-hand smoke

Consider taking steps to mitigate the problem yourself before taking more formal steps. This could include such actions as blocking the source of the smoke, negotiating with the smoking tenant, and talking to your property manager to help negotiate a solution, to name just a few. Here are some steps you might consider:

a. Block or reduce the smoke

• Seal the source of smoke if possible, such as electrical outlets and ceiling light fixtures\
• Fill or patch cracks in walls, ceilings
• Insulate the air spaces around plumbing pipes
• Close windows and doors
• Weather-strip doors

Visit the Canada Mortgage and Housing Corporation website for useful tips on Solving Odour Transfer Problems in Your Apartment.

Go to the US Indoor Environmental Engineering website for information on how to reduce second-hand exposure in multi-unit dwellings

b. Talk to your neighbours

If you feel comfortable, consider talking to your smoking neighbour. He or she might not realize that the smoke is a problem for you. Try to focus on solutions such as asking the neighbour to smoke outside, smoke in another area, close doors or windows, or seal the source of the smoke.
Seek support from other neighbours in the building. They might be experiencing the same problem, and may be willing to talk to the smoking neighbour with you.

c. Advocate for creating a non-smoking bylaw

• Ask your strata council to add a non-smoking bylaw resolution on the Agenda at the next annual general meeting. Smoking bylaws are legal and have many benefits for owners, including less damage to units, lower risk of fires, and fewer complaints about second-hand smoke.
• If necessary, seek support from other strata members about creating a non-smoking bylaw. Distribute a petition to get the necessary support (25% of voting owners) to add the resolution to the annual general meeting, or request a hearing or special meeting. While the smoke may not personally affect others, your neighbours may be sympathetic and lend their support. The majority of condo owners in BC would prefer a smoke-free complex. (See resident survey)
• Refer your strata council to this website. The condo section includes steps on how to go smoke-free, as well as legal information and market research.

a. Notify your strata corporation of the problem

• If all your efforts have failed to mitigate the problem, write a complaint letter to your strata corporation to request that they take action to rectify the problem.
• Provide them with your documented evidence of the source of the smoke, the frequency of the occurrence, its duration, the impact on your health, and the impact on the use and enjoyment of your home.
• Include any supporting evidence such as a letter from your physician concerning the impact on your health or letters from friends and neighbours to verify your claims.
• Identify what steps you have taken to resolve the problem to date.
• Indicate your willingness to negotiate a resolution, propose some potential solutions and ask for a response by a specific date (your bylaws may specify timeframe for responses to complaints).
• Consider sending a group letter if there are others in the building experiencing the same problem.
• Refer your strata council to this website. This section provides information about the strata corporation’s duty to address nuisance complaints of second-hand smoke, as well as suggested steps to rectify the problem. It also provides a legal opinion for their reference.

Note: Keep all records of correspondence with the strata corporation or property manager concerning this issue. If the corporation fails to take action to address this issue, you will need evidence that they knew about the problem, were warned that it was a significant interference, and refused to take steps to address the problem.

b. Negotiate solutions

It is always a good idea to try to negotiate a solution before taking more formal actions. It is also important to put forward suggestions of possible solutions to solve the problem. You may have an idea that has not been considered, so put forward a proposal that you think might work. If you haven’t tried to mitigate the problem yourself, request that your strata corporation consider potential solutions such as:

Conducting repairs to your unit or the smoker’s unit to seal off the smoke

• Install door sweeps and weather stripping around windows
• Fill or patch cracks in walls and ceilings
• Insulate the air spaces around plumbing pipes
• Insulate and place covers over electrical outlets

Inspecting the ventilation system for proper function

• Clean, change or install new filters in the ventilation system
• Add more fresh air intake into the ventilation system
• Restrict the amount of air exhausted through the ventilation system from units where there is smoking

Note: It should be clarified that structural repairs or improving ventilation systems may reduce some of the smoke infiltrating your home, but it will not eliminate the problem. The Centre for Energy and Environment in Minneapolis conducted an extensive study of air flow in multi-unit dwellings in 2004, and identified a number of measures to reduce smoke transfer between units in buildings. The findings show that while about one-half of the units treated had a reduction in contaminants of greater than 50%, close to one-third of the units treated had no reduction of contaminants at all.

Working with the smoking owner to negotiate a solution

• Request that the strata corporation consider negotiating a solution with the smoking resident, such as asking the smoking owner to stop smoking in specified areas where the smoke is entering your unit; or only smoke in designated outside areas.

c. Request strata bylaw enforcement procedures be initiated

Pursuant to the Schedule of Standard Bylaws in the Strata Property Act, virtually all strata corporations in BC have bylaws that prohibits behaviour that creates a nuisance or hazard to another person. This can include smoking, regardless of whether the strata corporation has a non-smoking bylaw in place. (See laws & legal section: Strata Property Act)

If a negotiated solution cannot be reached with the smoking resident, and there is evidence of significant interference caused by the smoke, the corporation has the authority to notify the smoking resident that they are in violation of the bylaws, and must cease the behaviour that is causing the nuisance. Strata corporations have a duty to enforce the bylaws, including enacting bylaw enforcement proceedings up to and including seeking relief in Court if necessary. (See bylaw enforcement section)

If your strata corporation refuses to act, or you are not satisfied with the solutions offered or taken, check out our section on last resort remedies.

If your strata corporation refuses to act, or you are not satisfied with the solutions taken, here are a few last resort measures that can be taken. You might also consider contacting your strata Association if you are a member to seek assistance and guidance on next steps.

Before initiating formal procedures, including initiating a lawsuit, it is recommended that you seek legal advice.

a. Initiate Informal dispute resolution procedures
 

• If you have provided sufficient evidence that second-hand smoke is unreasonably interfering with the use and enjoyment of your home, and causing a significant nuisance, Section 26 of the Strata Property Act requires the strata corporation to enforce the bylaws. (See laws & legal issues: Strata Property Act)
  
• If the strata corporation refuses to act to minimize or eliminate the impact of the behaviour, consider following the informal processes under the Strata Property Act for resolving disputes, including:
  
• Request a hearing at a strata council meeting. Apply in writing, state reason for hearing and request a decision be made to rectify the problem.
  
• Requisition for a Special General Meeting to consider a resolution. Check bylaws - may require that written demand include signatures from 25% of voting corporation members.
  
• Propose a resolution to be included on the agenda of the next Annual General Meeting. Check Bylaws – if necessary, you may be required to obtain  signatures from 25% of voting corporation members.
  
• Request a dispute resolution committee be organized to resolve the problem.
  

b. Initiate formal dispute resolution procedures

• Request that the dispute be referred to Arbitration for resolution
• Supreme Court can appoint an Arbitrator if necessary

 

c. Court Action

 

If all your efforts fail to rectify the problem of second-hand smoke infiltrating your home, you have the last resort remedy of initiating a lawsuit. You will need to decide which parties to sue. This could include: 

• The strata corporation for failing to enforce its bylaws against the smoker. Section 26 of the SPA conveys the concept that councils have a duty to enforce bylaws. You can also apply to the Supreme Court to remedy a significantly unfair decision made by the strata corporation or property manager.
• The smoking neighbour for an order to restrain the person(s) from smoking.

However, this issue is not black and white, and it is recommended that you seek legal advice if faced with applying to court to enforce a nuisance violation caused by smoking. (See legal opinion)

Note: Click here to access the BC government website for more information on resolving complaints

When strata councils or property managers receive complaints about second-hand smoke causing a significant interference to residents in a condo complex, they are often reluctant to take action because the behaviour of smoking is not specifically addressed in their bylaws, and thus they assume the behaviour is not prohibited. But they would be wrong to assume that they have no authority or responsibility to address these complaints.

Virtually all strata corporations in BC have bylaws that prohibit behaviours that create a nuisance or hazard to another person, or that unreasonably interferes with the rights of other persons to use and enjoy their premises. Section 3(1) of the Schedule of Standard Bylaws states:
An owner, tenant, occupant or visitor must not use a strata lot, the common property or common assets in a way that:

1. causes a nuisance or hazard to another person,
2. causes unreasonable noise,
3. unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot,

This bylaw can be used to address a variety of situations, and smoking would fall under this bylaw, whether the strata corporation has a specific non-smoking bylaw in place or not.

Strata corporations should be aware that a complaint about an unreasonable disturbance is not just an  issue that must be addressed between neighbours. Section 26 of the Strata Property Act requires that a strata corporation enforce the bylaws. The corporation has a duty to exercise their powers and perform the duties of a corporation, including enforcing their bylaws. An owner could sue the strata corporation for making an unfair decision by failing to enforce its bylaws against a smoker. Further, courts might be sympathetic to owners who are compelled to enforce the bylaw themselves if the corporation doesn’t act. (See legal opinion)

Once the strata council or property manager receives a complaint of second-hand smoke:

a. Investigate the complaint.

Obtain information concerning the nature and extent of the problem. Ask the complainant to provide you with documentation of the source of the problem, severity, frequency, duration, impact of the smoke, as well as steps taken to date to mitigate the impact. The more information you collect, the easier it will be to resolve the problem. (See resident section: Do the groundwork)

b. Determine if the interference is a nuisance.
The challenge for strata councils or property managers is to determine whether the complaint about smoke infiltration is considered a legitimate ‘nuisance’ within the meaning of the law. According to the Strata Property Act bylaws, the nuisance must be unreasonably interfering with the use and enjoyment of the premises. 

Based on case law in BC, the Courts have found that a number of factors will impact this decision, including:

• The Courts in BC have adopted an objective test for nuisance, meaning that it’s not whether the complaining resident considers the smoke as a substantial discomfort or inconvenience, but whether the average person would take the same view. (See legal opinion – Popoff v. Krafczyk [1990] B.C. J. No. 1935)
• Another BC Court found that where the nuisance complaint involves residents living in a condo complex, additional factors must be considered when determining whether a nuisance is an actionable case.  The Court found that in communal living complexes, residents are required to exhibit more cooperation and respect for others to ensure that all residents can enjoy their home to the fullest extent. (See legal opinion – BC Supreme Court, The Owners, Strata Plan NW 87 v Karamanian [1989] B.C.J. No. 6729)

While it may be challenging to determine whether the interference is in fact unreasonable, there is sufficient case law to show that a strata corporation can obtain relief from the Court to stop behaviours such as smoking, where there is evidence that it is causing a nuisance to other residents of the complex. As such, the strata corporation has grounds and a duty to act.

If the strata corporation or property manager determines that the interference can be considered a nuisance, it is important to try to reach a solution that would minimize the impact of the behaviour on the neighbouring residents:

• Consider possible remedies that could minimize the smoke transfer, such as:

• Weather-stripping around doors
• Checking that the building ventilation system is working efficiently
• Insulating air spaces around plumbing pipes and covering electrical outlets

• If the smoke cannot be eliminated, work with the affected parties to attempt a negotiated solution. You might consider having the smoking resident visit the complainant’s home to get a sense of how serious and pervasive the problem is. This might induce the smoking neighbour to help find a solution.
• Consider solutions such as creating a designated smoking area outside on the building property, with a cover if necessary. The Council could also consider offering incentives such as free nicotine replacement therapy to help the smoking neighbour deal with times when smoking outside is not possible (such as evenings or weather conditions).
• If this is an escalating problem, the council could consider taking a leadership role by creating a non-smoking bylaw to ban smoking on the entire property, including individual strata units and outdoor balconies. (See How to create a non-smoking bylaw)

If there is evidence that the smoking is causing a nuisance for other residents in the complex, and a compromised solution cannot be reached, the strata corporation has a duty to initiate bylaw enforcement procedures. Prior to obtaining a remedy for non-compliance of the smoking bylaw however, the strata corporation must first follow mandatory procedures for enforcing bylaws under Section 135 of the Strata Property Act.

This means that strata corporations must notify the smoking tenant of the complaint received against him or her, provide the particulars of the complaint and a reasonable time to answer each complaint, including the option of a hearing at a strata council meeting. It is important to emphasize that strata corporations must be especially vigilant about following the proper procedures as outlined under the Act. The Courts will not generally enforce the fines levied or other remedies initiated if the procedures have not been precisely followed. (See Legal opinion)

Once the strata corporation has complied with the proper enforcement procedures, and determines that there has been a breach of the bylaws, it can then choose from a variety of remedies, including:

• Fines
• Remedy the contravention
• Deny access to a recreational facility
• Evict (final resort)

If a council is faced with enforcing a nuisance bylaw because of smoking, they may want to consider seeking legal advice before proceeding.

For more information on bylaw enforcement procedures, see the Enforcement section of this site.