Sunday, March 22, 2009

Secondary smoke is grounds for action by board

Q: Can anything be done about a heavy smoker if smoke is permeating the next-door unit? Second-hand smoke is a health hazard.

A: The number of second-hand smoke queries sent to me warrants revisiting this question.

The Condominium Act specifies that no person shall permit a condition to exist or carry on an activity in a unit or in the common elements that is likely to damage the property or cause injury to an individual. Injury must be considered as including injury to one's health.

A condominium corporation, under the act, has a duty to take all reasonable steps to ensure that the owners and occupiers of units comply with the act and with the corporation's declaration, bylaws and rules.

If the board is satisfied that second-hand smoke is entering the unit of a complaining occupant, it should demand that the offending owner take steps to deal with the issue, perhaps by limiting his or her smoking or confining it to rooms vented to the outside of the building. If the owner refuses to co-operate or if those steps do not solve the problem, the corporation may be obliged to instruct the owner not to smoke within the unit.

If necessary, the corporation should discuss a court application for a compliance order under section 134 of the Condominium Act with the corporation's lawyer.

David Pylyp; In a previous related post we also talked about a woman suing for damage to her suite by a tenant.  

Would the condominium board be able to PROVE it's case in a court of law?  Who would be responsible for the legal costs of mounting such an action?  How are cooking odours any different in the hallways from second hand smoke? 

Your comments are invited.

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