There are more and more landlords requiring non-smoking tenants, fearing that they will smoke in your home causing damage and problems with other tenants.
However, with the legalization of cannabis on October 2018, you wonder if your tenants can smoke freely in your dwelling.
Discover what are your resources and if it is possible for your tenants to smoke freely within your property.
In a general way
60% of landlords indicate that most of their leases include a clause prohibiting tenants from smoking, shows a survey of its members by the Corporation of Quebec property owners. There is now a minority of landlords who allow tenants to smoke in their apartment buildings.
In addition, rental property owners have sent lease change notices to prohibit their tenants from smoking cannabis inside and outside their dwellings, but the file is far from settled for the current leases. If the owner of a dwelling can apply for a change of lease, his or her tenant is also entitled to contest it and to require the landlord to fill out a complaint to the tenancy board.
Therefore, an owner cannot order a cannabis smoking ban clause in an existing lease at this time. He cannot order a long-standing tenant a prohibition of “smoking cigarettes and/or marijuana inside and outside”. The Régie du Logement finds that “the addition of this clause constitutes an infringement of the right to maintain in the premises for the tenant “.
However, a clause prohibiting the smoking of cannabis — or tobacco — may be included in the conclusion of a lease with a new tenant.
The different laws in the Canadian provinces
In Alberta, British Columbia and Ontario: up to four cannabis plants are allowed per household, subject to restrictions of the landlords. In Quebec, tenants are not allowed to cultivate cannabis.
Restrictions exists surrounding cannabis; these restrictions should be clearly set out in the rental agreement:
- You may prohibit the smoking of all substances including cannabis in your buildings or on your properties.
- Non-smoking consumption, however, may be permitted, but tenants and condo occupants should check applicable rules.
- You may also prohibit the growing of cannabis in the rental agreement.
If the smoking ban is expressed in the lease and accepted by both parties, then you can cancel the lease. If your tenant violates the rental agreement by smoking in your dwelling, you may submit an application for eviction to the court or the Residential Tenancy dispute resolution Service (RTDRS).
As an owner, you can include in the lease a clause prohibiting the use of tobacco and cannabis.
The CCLA also includes consequential amendments to various statutes, including:
- Residential Tenancy Act
- Manufactured Home Park Tenancy Act
to prohibit cannabis smoking under existing leases that prohibit smoking tobacco and to prohibit the personal cultivation of cannabis under existing leases (except for federally authorized medical cannabis).
- For new leases, the existing provisions of each Act allow landlords and tenants to negotiate the terms of leases.
- For new leases, an owner of rental properties will have the right to prohibit cannabis.
A smoking ban contained in a lease signed by the tenant is legally limiting. If an owner deems that the tenant is violating the lease by smoking, he must send him a written warning. The letter must indicate that the tenant must respect the lease otherwise he or she may be evicted if he or she does not stop smoking in the dwelling. The termination process cannot begin until the owner has sent this warning letter.
In Ontario and Alberta
As in Alberta and British Columbia, for new leases, you can include a clause banning the use of tobacco and cannabis.
Currently, you don’t have the right to change your tenant’s lease before it expires.
That is why the Canadian Federation of Landlord Associations is asking the provincial government to change the regulations on leases to ban cannabis as soon as it is legalized, for all the tenants.
As in the other provinces, it is legal to add a clause in the new leases that prohibits smoking in the dwelling. The Quebec regulations prohibit also smoking in the common areas of buildings of six units and more.
Since the lease is a contract, the parties can negotiate the terms. The settlement must be handed over to the tenant to be enforceable.
However, in view of the Régie du logement’s finding that the consumption of marijuana is a way of life and not a protected right to privacy, there is no objection to the inclusion of such a clause.
The addition of such a clause has the merit of making tenants aware that the landlord prohibits the cultivation or consumption of marijuana and will facilitate the landlord’s evidence within the scope of judicial procedure.
Methods to avoid damages
Raise awareness among your tenants!
According to a Canadian survey, conducted by Harris/Decima on behalf of Health Canada, 46% of Canadians would prefer to live in a building where smoking is prohibited everywhere: in units, on balconies, in common areas and on the premises.
44% of non-smoking tenants living in residential buildings believe that neighboring smoke is a risk to their health, according to the survey conducted by Ipsos on behalf of the Association for non-smokers’ rights. One-third of respondents had made suggestions to counter the phenomenon, but the situation remained unchanged in 75% of cases. One in ten non-smoking tenants thought about moving because of that.
So many tenants say they want to live in a non-smoking environment. Smoke-free apartments are cleaner and deteriorate less rapidly. In fact, the burning of tobacco leaves yellowish marks on the walls, a smell difficult to evict, or even burn marks on the floor or the counters.
A clause in a lease agreement would not prevent your house effectively from smoke damages.
Some tenants would just break the lease agreement and some will just be unexpected damages even if the tenant takes his precautions.
The most effective solution is to get insurance in order to be covered if any smoke damages happen.
We, at APRIL Canada think that no one is immune from an accident. That’s why we offer an insurance that reimburses you, as a landlord, from damage caused by smoke.
Now you know everything about the laws concerning tobacco and cannabis in rentals!
The clause prohibiting the tenant from smoking in his dwelling, if it is signed freely as part of the negotiation of a new lease is perfectly legal and opposable to the tenant.
You have the right to choose if you want to accept or not smoking in your rental but you should know that smoke damage can occur at any time even if you specified “No smoking” in the lease agreement.
That’s why, if anything happens to your unit, we’re here to protect you!