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Linda Palfi
CNC Properties
Box 47033 Creekside, Calgary, Alberta
P: 403-998-7732
F: 403-592-8002
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Smoke an unwelcome guest in most condo homes

 

Whether cigarette, cigar or marijuana smoke, the vast majority of condo home owners don't want to breathe it or smell it when their neighbour lights up. I receive e-mails from people across North America asking what authority condo Boards have to restrict smoking. The answer depends in part on where the smoking is being done, and sometimes on what is being smoked.

 

Most condominium bylaws already prohibit smoking on "common property", which includes parking areas whether indoor or out, the lobby and hallways. In fact, balconies and patios are also common property in most condo developments, so technically it's against condo bylaws to smoke there, regardless that people consider it their private property; it's not! Thankfully, considerate condo homeowners who smoke usually adhere to the not-on-common-property rules even without enforcement, reducing the issue of second-hand smoke in condo buildings.

 

Check your bylaws to confirm that they prohibit smoking on the common property, and if not lead your board and 75% of owners to amend them to add such restrictions. In the meantime, every condo board has the authority to make immediate "house rules" prohibiting undesirable activity, although it may have more limited authority to enforce those rules. Once the bylaws do prohibit smoking on common property, your Board must be willing to tell residents, whether owners or tenants, that the rules WILL be enforced, and to follow up as needed in writing and even with fines.

 

With smoking stamped out in hallways, lobbies and the like, we're down to the pall from a few smokers drifting from their suites into adjacent hallways, to balconies nearby, and into the suites of their non-smoking neighbours. For those allergic to smoke, sensitive to it, or for those with asthma, this is a serious issue. For others it's simply a stink that we'd rather not put up with; we open our patio doors and windows for the freshest air possible, not to smell what the resident adjacent to me is smoking. In some buildings you can't seem to plug every plumbing gap that allows through a current of smoke-laden air, and the gap under the door to the common hallway is there to provide fresh air from the "make-up air" vent of the building's ventilation system.

 

While a condo board and 75% of its owners could adopt bylaws prohibiting smoking inside all suites in a building, the rule would likely fall if challenged in court. After-the-fact rules imposed on private condo property usually don't stand up. Such rules seem to be upheld by the courts only if they were in the bylaws and registered on all suite property titles before each owner bought their home. That obviously leads to the idea that a progressive developer could easily build Alberta's first smoke-free condo building, whether it's a brand-new building or a conversion project. It would be a marketing plus, if you ask me.

 

In existing buildings we're left with enforcement of our existing bylaws that prohibit smoking on the common property, or to create such bylaws if needed. Enforcement could extend to ordering a condo homeowner to stop smoking on his own balcony or patio, and I believe this would be upheld if challenged. Beyond that we're waiting for a Canadian test case, which will require a fed-up non-smoking condo homeowner taking to court the next-door neighbour who refuses to butt out in his own home.

 

And what if it's marijuana smoke? Regardless of how much pot you, I, or Bill Clinton may have smoked in years past, it's an illegal product, so any board member, property manager or homeowner can report that to police. Mind you, with today's tolerance I wouldn't expect a swat team to descend, yet a homeowner told that his or his tenant's pot smoking has been reported to police might see the practice stop. In fact, any illegal activity is banned by most bylaws, so the board could take enforcement action, too. In short, a well-administered condo building isn't going to see such a problem last for long.

 

There are a few finer points of law and enforcement to be pondered. There may, for example, be a duty for a condominium corporation to do everything physically possible to prevent a suite owner's smoke from drifting into other suites and into hallways. As suite doors to hallways are common property, the board could require the smoking owner to keep the door closed, other than when entering or leaving. The board could, or perhaps should, weather strip and caulk to seal a smoker's suite, or to seal the complaining non-smoker's home. Might a board's duty to protect other owners' comfort extend to creating additional ventilation in an offending suite?

 

If you want to avoid the law but make your point to an oblivious and unconcerned smoker, you might fry fish with your suite door open a few nights this week, or invite friends over for the East-Indian cooking party you've been considering. Use plenty of spice. Sometimes fighting fire with fire will make your point and obtain the offending party's attention and perhaps their cooperation. Let's face it, although fewer Canadians smoke tobacco these days, and marijuana is downright passe, this issue will linger like the smell of a stale cigar for some years to come.

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