We own a duplex that is heated centrally. The tenant smokes and we don’t, can I ask them to smoke outside?
The first thing you should try is writing a letter to the tenants advising them that the smoke is bothering you and request that they smoke outside. If they do not comply you could then serve them with the legal notice (Form N5)that states that they are interfering with your reasonable enjoyment of the premises. When they are served with this notice they have seven days to correct the problem and if not corrected then you can file an application with the Landlord and Tenant Board to terminate the tenancy. It is uncertain that you would be successful in this case because the tenants could argue that their tenancy agreement did not include a non-smoking clause.
The upstairs tenant has a NO SMOKING clause in her lease and we smell smoke in our apartment. Can we apply to evict her because of this?
You can issue a Form N5 based on the reason that she is interfering with the reasonable enjoyment of the premises by the landlord and/or other tenants and not complying with the agreement.
A landlord can give a notice to a tenant for interfering with the reasonable enjoyment of the landlord, if the landlord resides on the residential premesis, and/or of the tenants if the tenants have complained about the smoke. If damage is associated with the smoking, you should get an estimate for the cost of repairs and incorporate this reason into your notice. The same notice, which is the Form N5, can be given for both reasons. You can then ask for compensation for the damage in the same application. It takes normally two to three weeks to go to a hearing at the Landlord and Tenant Board. You can represent yourself at the Board but, depending on the case, it may be a good idea to obtain legal representation. This is one of those issues that is not that straight forward and Board decisions have varied based on this issue.
As you may be aware there aren’t any by-laws on smoking in private residences, however landlords are allowed to include a non smoking clause in their tenancy agreements. If a tenant does not comply with this provision and it becomes a problem for other tenants your recourse would be to serve the tenant with Form N5 based on the reason that he is interfering with the reasonable enjoyment of other tenants. Once the tenant is served with this notice then the tenant has seven days to correct the situation. If the tenant does not correct the situation you can file an application with the Landlord and Tenant Board to terminate the tenancy. An adjudicator of the Board will then have to decide whether to terminate the tenancy on that basis or give the tenant another opportunity to still correct the situation. In these types of cases it is very important to have the other tenants attend the hearing as witnesses to support your claim.
Landlords are allowed to state in their rental agreements smoking is not allowed on the property. However, if a tenant does not comply with this you will still have to prove that the smoking is causing a problem such as other tenants complaining, or if there’s allergies or medical conditions that are aggravated by the smoke. At that point you can issue the tenant with a notice which still gives them an opportunity to correct the situation before you can take the matter to the Landlord and Tenant Board.
Currently there are no by-laws governing smoking in private residences. A landlord is permitted to include a clause in the tenancy agreement that there is no smoking on the premises.