Monday, March 17, 2008

Landlord May Butt Out Smoking Tenant: Ontario Landlord & Tenant Board

In a ground breaking ruling issued February 25, 2008, Ontario's Landlord and Tenant Board has enforced a non-smoking provision in a residential lease, and upheld the right of residential landlords to prohibit smoking in the Province's rental accommodations.

In its decision, the Board ordered the tenant of a luxury, short-term Toronto rental unit to pay his landlord compensation of $10,000.00, after the tenant was found to have repeatedly allowed smoking in the unit, in violation of a no-smoking clause in the unit's lease.

Board Member Egya Sangmuah enforced the no-smoking provision, and ruled that "the persistent smell of cigarette smoke would constitute damage to rental premises" under the Province's Residential Tenancies Act.

He ordered the tenant to pay the landlord's costs of repainting, carpet-cleaning, reupholstery and furniture and linen replacement necessary to restore the unit and its contents to a smoke-free condition.

The Landlord, Christine Celuba, was in the business of renting luxury rental units to executive clients, who typically sought short-term, smoke-free accommodation. In December 2006, after reports from the unit's cleaners, Ms. Celuba became aware of a persistent smell of cigarette smoke in the tenant's unit.

She made several, unsatisfied requests of the tenant that smoking cease in the unit, and ultimately brought an application to the Board seeking termination of the tenancy, and compensation for damage caused by smoking to the unit.

She alleged that as a result of unauthorized smoking:

  1. [The tenant] or another occupant of the rental unit or someone he permitted in the residential complex has wilfully or negligently caused undue damage the premises; and,
  2. [The tenant] or another occupant of the rental unit or someone he permitted in the residential complex has substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant.

After a four-day hearing, the Board found that the Residential Tenancies Act "is broad enough to include furnishings within the interpretation of “rental unit,” and ruled that the non-smoking provision in the unit's lease was lawful and enforceable.

Board Member Sangmuah ruled:

I agree that it is lawful to include a no smoking clause in a rental agreement. I do not know of any public policy that is against putting no smoking clauses in tenancy agreement. The Act contemplates tenancy agreements and provides for their enforcement. Sections 14 and 15 of the Act specifically prohibit no pet clauses and acceleration clauses but, for the most part, the contents of tenancy agreements are left to the parties. No smoking clauses are neither expressly prohibited by the Act nor contrary to the Act”

In assessing whether damages may be awarded for the lingering smell of cigarette smoke, the Board relied on section 62(1) of the Act and concluded that the availability of compensation must be considered within the “purpose for which the rental unit was intended to be rented.” The Board found that the smell of smoke indeed did constitute damage to the rental unit, in view of the landlord's target clientele of executives seeking non-smoking accommodation.

The Board summarized its findings as follows:

In light of the findings above, the Landlord has established that the Tenant caused damage to the furnishings in the rental unit by permitting smoking in the unit. Such damage is not normal wear and tear and is due to the negligence of the tenant. By permitting smoking in the unit, the Tenant also substantially interfered with the right of the Landlord to engage in and protect her business of renting furnished luxury accommodations to a wider clientele of non-smokers.

,,,The total amount of compensation due is $10,958.85. The board's monetary jurisdiction is $10,000.00. Thus the Landlord can only recover $10,000.00 from the Tenant as compensation for wilful or negligent damage to the rental unit or substantial interference with the Landlord's lawful right, privilege or interest.

In addition the Board awarded one further month’s rent to compensate the landlord for lost rental revenue during the renovation and restoration of the rental unit.

The Board's complete decision is here.

- Garry J. Wise and Annie Noa Kenet, Toronto

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