Where There’s Smoke, There’s Problems: a Few Considerations for Licensees Regarding Second-hand Smoke #558
CATEGORY: Legally Speaking
TAGS: Municipal Bylaw Second-hand Smoking Smoking Strata Bylaw Strata Corporation Strata Properties Tobacco and Vapour Products Control Regulation
Second-hand smoke can be the source of much conflict and aggravation in shared living spaces such as strata buildings. While smoking can lead to residential fires and can increase building maintenance costs, more importantly, inhaling smoke is hazardous and there are no safe levels of exposure, for example see Brookes v. The Owners, Strata Plan NW 1890 2021 BCCRT 1181.
It is important for licensees acting for buyers of strata units to understand the buyers’ particular circumstances and needs, including whether the buyers are smokers themselves, have a disability requiring the use of medical cannabis, or have a disability that makes them particularly sensitive to or allergic to smoke.
Buyers who are smokers may not wish to live in buildings where the strata corporations have passed bylaws by 3/4 vote to prohibit smoking in both strata lots and in common or limited common property. It may be quite inconvenient for such buyers to find a place to smoke given provincial legislation (the Tobacco and Vapour Products Control Regulation) which bans smoking not only in common enclosed spaces, but also within 6 meters of a doorway, open window, or air intake; and in any municipalities that have adopted municipal bylaws restricting smoking in public spaces.
Buyers who have a disability (e.g., asthma, COPD, etc.) that makes them particularly sensitive to or allergic to smoke, or buyers who have children, may want to know if there is a no smoking bylaw that applies throughout the building, or whether the strata corporation only has a rule prohibiting smoking or vaping in common or limited common property. If smoking is allowed inside a strata lot, smoke might still travel from inside a neighbouring strata unit through pipe chases or vents and may become a concern to such buyers once they move in. Buyers may wish to inspect the property to identify signs of smoke ingress, prior to committing to purchasing the property. Such buyers may also wish to know whether there is a recent history of smoking bylaw infractions or smoking complaints in other units in the building. It is also good practice to obtain a full set of strata documents including bylaws, rules, and meeting minutes, and to provide the set to the buyers along with written advice to the buyers urging them to review these documents carefully prior to committing to purchase the strata unit.
In the absence of a strata bylaw expressly prohibiting smoking, strata corporations may nonetheless rely on their bylaws generally prohibiting nuisance or unreasonable interference with the rights of other persons to use and enjoy their strata lots or common property.
In some situations, those rights can come into conflict with the strata’s duty to accommodate residents who, for example, smoke cannabis for medical reasons. Note that, at this time, there have been no cases where courts have imposed a duty to accommodate residents with a nicotine addiction.
Having to accommodate residents who smoke cannabis for medical reasons and residents with, for example, asthma, can create complicated scenarios for a strata corporation. The strata corporation will have an increased onus to accommodate any disability and to investigate and address disputes between such owners promptly and fairly.
Real estate professionals licensed as strata managers and providing services for the same should familiarize themselves with recent decisions by the BC Human Rights Tribunal respecting a strata’s duty to accommodate strata lot owners with disabilities, including Leary v. Strata Plan VR1001, 2016 BCHRT 139; Talbot v. Strata Plan LMS 1351, 2017 BCHRT 59; and Bowker v. Strata Plan NWS 2539, 2019 BCHRT 43; as well as with decisions of the Civil Resolution Tribunal such as Cheslock v. The Owners, Strata Plan NW 3158, 2021 BCCRT 712. Strata managers should be careful not to stray outside their area of expertise and may wish to promptly refer any questions regarding the strata’s duty to accommodate disability to experienced strata or human rights lawyers.
Finally, real estate professionals licensed as property managers and providing services for the same, may wish to confirm with landlords whether they wish to ban smoking and vaping altogether in the rental unit as a term of the tenancy agreement. If such a term is included, it should be reviewed with tenants before the tenancy agreement is signed. If the rental unit is a strata unit, property managers should also review the strata bylaws and rules with the prospective tenants. It may be helpful to have a written process for documenting such review if there is ever an issue in the future with tenants who claim not to have been aware of the ban on smoking in the tenancy agreement and/or the strata rules or bylaws.
As always, licensees should take steps to understand their clients’ particular wishes and needs, and to document their inquiries and advice in writing as much as possible.
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