Smoking cigarettes or cannabis in housing or co-ownership: legal impacts

Cigarettes and cannabis in buildings, more particularly in housing and condominiums, have caused lot of problems before the courts in recent years. It is therefore important to review the rules applicable in this matter.

Author: Manuel St-Aubin, lawyer and partner at St-Aubin avocats .

Date of writing: 2023-12

Date updated: n/a

* This article was written in the context of a televised intervention on LCN/TVA television in December 2023. Follow the following link to listen to the interview.

1. Principles applicable

The legal principles that apply to cigarette or cannabis smoke are similar in the housing context.

The Civil Code of Quebec provides for obligations to which the tenant of housing must comply, in particular:

• He must use the accommodation with prudence and diligence (art. 1855 CCQ);
• He must not disturb the normal enjoyment of other tenants (art. 1860 a. 1 CCQ);
• He must respect the obligations resulting from the lease, in which a stipulation may be included prohibiting the smoking of tobacco and/or cannabis;
• It must not cause abnormal inconvenience to the neighborhood (art. 976 CCQ).

These obligations are often an issue in cigarette or cannabis cases, particularly when the landlord requests termination of the lease.

Indeed, if the tenant does not respect his obligations, the owner/lessor may request damages and/or termination of the lease (art. 1860 al. 3 and 1863 CCQ).

Furthermore, when it comes to cannabis, we must not forget that the Cannabis Act, RLRQ c C-5.3, de facto prohibits smoking in several places (art. 12 et ss.), notably in:

• Seniors’ residences and their common areas;
• Private residences where educational childcare services are provided in a family environment;
• Common areas of residential buildings with two or more dwellings.

a) If the smoking ban is in the lease

When the ban on smoking tobacco or cannabis is provided for in the lease, the landlord must prove serious harm to obtain the termination of the lease, as indicated by the Tribunal administratif du logement (TAL) in the Complexe Hudson inc. c. Cunningham, 2021 QCTAL 5444 :

• [TRANSLATED] [26] Thus, to obtain termination of the lease, the landlord must demonstrate that the tenants are failing to respect their obligations and that this failure causes serious harm to the landlord or other occupants of the building.

b) If the smoking ban is not in the lease

It is not because smoking is not prohibited in the lease that the landlord cannot ask the smoking tenant to stop smoking. However, this will depend on the circumstances and the inconveniences suffered in connection with the smoke.

Indeed, the landlord is responsible towards other tenants who experience disturbances in the enjoyment of their accommodation linked to tobacco or cannabis smoke, because the latter must provide the tenant with peaceful enjoyment of the rented property (art. 1854 CCQ).

If tenants experience problems because another tenant smokes in their accommodation, the landlord/owner must ensure that this situation is resolved by intervening with the tenant causing the problem. Otherwise, the tenant who suffers such disturbances from the smoking tenant can ask the landlord for damages, a reduction in rent and/or termination of the lease (art. 1861 CCQ).

Thus, even if the lease does not prohibit smoking in the accommodation, the landlord could ask the court to prohibit the tenant from smoking or even to terminate the lease if it causes harm to other tenants.

The TAL case Fortier c. Lamothe, 2023 QCTAL 34054 clearly illustrates the applicable law when it comes to a smoking tenant causing significant inconvenience to other tenants.

In this case, the landlord received complaints from other tenants concerning a tenant who smoked in his apartment, which generated unpleasant odors. Despite the landlord's interventions, the tenant refused to stop smoking in the accommodation.

Thus, the landlord requests in particular the termination of the lease of the smoking tenant following receipt of complaints from other tenants inconvenienced by smoke.

The Court, citing another decision, states this:

• [TRANSLATED] [44] [43] [… the Court] considers that the presence of cigarette odors in a home and possibly second-hand smoke can prevent other occupants of the building from peacefully enjoying their accommodation even if for other individuals second-hand smoke is more tolerated. […]

Citing another judgment, the Court indicates the criteria to be met by the landlord to request the termination of the lease in the face of a smoking tenant (para. 46). In particular, it is necessary to demonstrate:

• The harm suffered related to smoke is more than a simple nuisance to the neighborhood;
• The behavior of the smoking tenant is disturbing, abnormal and excessive, frequent, repeated, continuous or persistent.

In this case, the Court judges that the tenant did not act “with prudence and diligence and harmed the peaceful enjoyment of the other tenants, in particular due to the persistent odors of cigarette smoke in the building” (para. 50), thus justifying the termination of the lease according to article 1863 CCQ (para. 51).

Despite this, the Court stays the termination of the lease according to article 1973 CCQ (even though it could terminate it), and “orders the tenant to smoke only on the balcony of his accommodation and to no longer smoke inside his accommodation” (para. 70).

It should be noted from this case that smoking in accommodation, even if there is no smoking ban in the lease, can be grounds for termination of the lease if the criteria set out above are met.

2. Applicable principles and particularities regarding co-ownership

The situation is slightly different when it comes to co-ownership. Indeed, the co-owner must comply with the declaration of co-ownership and its bylaws, in addition to not causing neighborhood disturbances.

Often, it will be stipulated that smoking is prohibited in a bylaw, which is also considered valid by the courts [1] . The co-ownership association can then impose fines on the offending co-owner who smokes in contravention of the co-ownership bylaws, if this is provided for in said bylaws.

The consequences can be significant for the co-owner who refuses to submit to the application of the bylaws preventing him from smoking. Indeed, the co-ownership association can request an injunction from the court ordering the co-owner to comply with the declaration of co-ownership, and if the co-owner does not comply with the injunction, he can request the sale of the co-ownership of the offending co-owner (art. 1080 CCQ).

It is in this context that the decision of the Superior Court takes root Syndicate of co-owners of the condominium Club Marin II c. Mokaddem, 2023 QCCS 4126 , handed down in October 2023 and in which a co-owner was ordered to pay the co-ownership association an amount of more than $103,000.

In this case, the syndicate of co-owners adopted a by-law in 2018 prohibiting the consumption and cultivation of cannabis.

The co-owner acquired his unit in 2019, and the defendant received a first notice of violation in the same year due to cannabis smoking.

In 2020, a request for an injunction was made by the syndicate of co-owners to prohibit the co-owner from smoking cannabis in his unit, and to claim penalties under the Cannabis by-law, reimbursement of the syndicate of co-owners's legal fees and punitive damages.

In 2021, a safeguard order was issued against the co-owner prohibiting him from smoking cannabis in his unit. The offending co-owner was subsequently found in contempt of court because he refused to comply with the Court's orders.

Despite all these consequences, the co-owner continued to smoke cannabis in his unit, which led to the syndicate of co-owners's action to file a complaint and to request the sale under court supervision of said co-owner's unit.

It should be noted that the majority of the granted claim of more than $103,000 is for the payment of extrajudicial fees (lawyer fees, etc.) as provided for in the declaration of co-ownership against co-owners who do not comply with it.

Considering, among other things, the following circumstances, the sale under court supervision of the co-owner's unit was not granted:

• The forced sale of the unit must be " pronounced only in exceptional circumstances." It must be ordered “ only in the presence of serious and irreparable harm caused to the Union or to the co-owners – without such harm necessarily having to affect each of the co-owners – in the event that such an order is not pronounced against the offending co-owner ” (para. 107);
• The co-owner had already put his unit up for sale, and had already received offers to purchase (para. 113);
• The Court ruled that “neither the Union nor the co-owners are likely to suffer serious immediate harm” (para. 114).

This case illustrates the significant consequences that can be imposed on an at-fault co-owner who smokes in his or her co-ownership unit in contravention of the co-ownership regulations.

3. Conclusion

The following should be remembered regarding cigarette or cannabis smoke in housing or co-ownership:

• It is not because there is no smoking ban in the lease that it is impossible to require a tenant to stop smoking in their accommodation;
• If there is a ban on smoking in the lease, it will be more obvious to sanction a violation of the lease, but the landlord will have to prove serious harm to request termination of the lease;
• In matters of co-ownership, the rules of neighborhood disturbance (art. 976 CCQ) and the declaration of co-ownership and its bylaws take precedence. If there is a ban on smoking in the co-ownership regulations, the offending co-owner may be exposed to significant consequences.

Obviously, everything is a question of fact and it will be important to evaluate the evidence before determining whether an owner or a co-ownership association can sanction the act of smoking in a unit or dwelling. The case law illustrations studied above can confirm this.

NOTICE: The informations in this article are general and do not constitute legal advice or advice nor does it necessarily reflect the state of the law exhaustively. For any legal questions relevant to your situation, we advise you to contact a lawyer.

[1] Syndicat des copropriétaires du condominium Club Marin II c. Mokaddem, 2023 QCCS 4126, para. 30.