A source of permanent controversy in co-ownership, smoking arouses passions. A growing number of co-owners are complaining about neighbors who smoke. Given the abnormal neighbourhood disturbances that second-hand smoke can cause, many non-smoking co-owners want it completely banned. They worry about the effects of second-hand smoke on their health. Under the circumstances, should co-ownership syndicates banish this habit? This is not an easy question to answer. Easier said than done, some will say. And they are not wrong. Here’s a look at the whole legal issue that defines smoking in co-ownerships.
The ban on smoking in common portions
The Tobacco Control Act prohibits anyone from smoking in enclosed public premises. It applies to, but is not limited to, the enclosed common portions of any co-ownership of two dwellings or more. Commercially operated terraces and outside areas are also governed by this prohibition. The term "smoking" also covers the use of an electronic cigarette or of any other device of that nature (Art. 1.1).
Do not take for granted that the words “common areas” have the same meaning as “common portions”. The Law applies only to public “enclosed” areas of a co-ownership. Therefore, it does not apply to all the common portions of a co-ownership. It cannot apply to balconies, for example, which are not “enclosed”, even though they are common areas with restricted use.
However, smoking is clearly prohibited in "closed common areas" such as a community hall, a corridor or an elevator. But a co-ownership is not subject to a smoking ban within nine meters of a door, window or air intake (Art. 2.2).
The ban on smoking in private portions
Second-hand smoke can find its way from one private portion to another, through crevices and breaches in walls, floors or ceilings, in electrical outlets, telephone or cable sockets, pipes or light fixtures. Poorly calibrated ventilation systems can also be a cause of this migration. Under the circumstances, can the consumption of cigarettes in private areas be banned?
There is no legislation prohibiting the consumption of cigarettes in a private portion. However, it is undeniable that cigarette smoke permeates objects and materials with an almost permanent smell. Because of the way some co-ownerships are built, smoke can even spread throughout the building. As a result, a co-owner, tenant or smoker can impose second-hand smoke on others, resulting in risks to human health. In a 2019 decision, the Quebec Superior Court upheld a building by-law prohibiting "the use of any smoked product within all private parts, as well as within all closed common portions for the exclusive or non-exclusive use of the co-owners." The court found that the by-law did not change the destination of the immovable, but rather was an extension of its residential destination, given a lack of isolation between the residential units in the building.
Justice Chantal Masse added: "There is no inalienable right to smoke in his unit for each co-owner; on the contrary, the common law on neighbourhood disorder, section 976 C.c.Q. and the special provision of section 1063 C.c.Q.,in competition with the many judicial authorities linking the effects of second-hand smoke to the health of those exposed to it, and the Charter of Human Rights and Freedoms and the right to life and safety and integrity of the person it enshrines, instead move towards an obligation to abstain from smoking in environments that make other people susceptible to see their health affected by second-hand smoke, whether it is a workplace, hospitals or residential settings as in this case."
Still, we must remain cautious. Notwithstanding the above statements, it should be noted that this decision remains a case in point arising from specific evidence on this record. It is therefore necessary not to identify it as a general principle, namely that a regulation would suffice for a syndicate to prohibit anyone from smoking in a building, either in common or private portions
Enforcing the building's regulations
A syndicate of co-owners must not tolerate a person smoking in a prohibited portion of the co-ownership. Failure to enforce these regulations could result in the syndicate being sued. It must exercise due diligence, but also take all necessary precautions to prevent violations in this area. However, it is possible to install a closed smokehouse, which must meet certain conditions. The syndicate would benefit from introducing this prohibition in the declaration of co-ownership, by adopting a by-law, if it is not already included. This regulation could go beyond what is required in tobacco laws. For example, a smoking ban could be adopted in all common portions (whether closed or not) including a balcony, which is generally referred to as a common portion for restricted use.
In most cases, this regulation would only affect the use that can be made in the common portions. The destination of the immovable (which is often residential) would not be changed. In a vote, the majority of the votes of the co-owners present or represented at the meeting (Art. 1096 C.c.Q. ) would be required. The decision should be made expressly, in a minutes or a written resolution of the co-owners, and then filed in the register of the co-ownership (art 1060 and 1070 C.c.Q. ). Once passed, the amendment is enforceable to all occupants of the building, including lessee (tenants), to whom a copy will have to be given (art 1057 C.c.Q. ).
Implementation of the Tobacco Control Act
Infractions to the Tobacco Control Act are subject to fines. Inspectors have been appointed to enforce the Tobacco Control Act, against natural and legal persons. Anyone impeding the work of an inspector or refusing and/or neglecting to supply, following the request of an inspector, information or documents related to the application of the Tobacco Control Actand its Regulations, can also be fined.
WHAT YOU SHOULD KNOW! A co-owner inconvenienced by second-hand smoke could consider a lawsuit for neighbourhood disturbances against the co-owner concerned. The applicant will nevertheless have to show that this nuisance is abnormal, and that it exceeds the limits of the tolerance that neighbours owe, under section 976 of the Civil Code of Québec.
WHAT TO KEEP IN MIND: To avoid ambiguity, it is in the interest of a syndicate to properly identify, in its building by-laws, all common portions where smoking is prohibited.
WARNING! It must be understood that the physical situation of terraces and balconies, in a co-ownership, can cause discomfort for some occupants, when the immediate neighbors are smokers. Most of the time, these structures are superimposed and located very close to each other. "However, the protection of the health of co-owners must take precedence over the freedom of smokers."