Smoking Tenant bothers other Tenants

[wendyfernandes]

Hello Everyone,



I’m hoping some of you can help me out with this situation.

I have a detached house in Hamilton which is not a legal duplex, but where I am renting out the top and basement units. I purchased the house in December 2006 and the person in the basement has been there since before I purchased the house. In fact she was a previous owner of the house. The issue is that she smokes in the house (always had) and it is really bothering (health-wise with allergies and headaches) the people upstairs. I don’t have anything in the lease that says she should smoke outside (she was my very first tenant and I didn’t know to put that in the lease), but I have spoken to her about it several times (verbally and through e-mail), and she told someone who was acting as my property manager for several months that she would not stop smoking inside the house. She said she would use an air purifier, but either she is not doing it or it is not working well. My question is two part:



1) Is this grounds for eviction if she is interfering with the well-being of other tenants?

2) Is there something that can be done to reduce the smell of the smoke that is coming through?



Thanks everyone for your help. I really appreciate it!



Wendy

 

[mikecunning]

QUOTE (wendyfernandes @ Dec 5 2007, 07:29 AM) Hello Everyone,

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I`m hoping some of you can help me out with this situation.

I have a detached house in Hamilton which is not a legal duplex, but where I am renting out the top and basement units. I purchased the house in December 2006 and the person in the basement has been there since before I purchased the house. In fact she was a previous owner of the house. The issue is that she smokes in the house (always had) and it is really bothering (health-wise with allergies and headaches) the people upstairs. I don`t have anything in the lease that says she should smoke outside (she was my very first tenant and I didn`t know to put that in the lease), but I have spoken to her about it several times (verbally and through e-mail), and she told someone who was acting as my property manager for several months that she would not stop smoking inside the house. She said she would use an air purifier, but either she is not doing it or it is not working well. My question is two part:



1) Is this grounds for eviction if she is interfering with the well-being of other tenants?

2) Is there something that can be done to reduce the smell of the smoke that is coming through?



Thanks everyone for your help. I really appreciate it!



ont-family:Times New Roman">Wendy
Hi Wendy:

I am unfamiliar with Ontario tenancy regulations...in BC, though, tenants have a right to peaceful enjoyment of the property. If another tenant interfers with that right it is up to the landlord to deal with that other tenant (landlords have been held liable in some cases because they have not dealt with the offending tenant!) Typically, the landlord has to give a warning letter (material breach, substantial breach, which ever the case) and leave a time for the tenant to correct the behaviour / breach. Such letter should also have language that should the breach not be rectified if will lead to a notice to end tenancy.

Please consult with your local tenancy board for province specific requirements. Good luck!

Mike

 

[edlabine]

Hi,

Tennancy rules vary by province but my 2 cents...

She was there when the people moved in - why is it an issue now, but it wasn`t when they were looking at the apt? My places are all non-smoking and it is clearly spelled out in the lease (must smoke outdoors). Too late to help you, but next time eh?

You need to isolate airflow, which is all but impossible if you have forced air heating that is shared. You could install baseboard heating for the non-smokers, so they don`t get the smoky air pumping up to them. I don`t think that will work. I`m not sure whether or not you could legally kick the smoker out, but ethically I think it is wrong.

What would I do? I`d sympathize with the non-smoking tenants, offer to buy them an air purifier, and offer to let them out of their lease with a one month notice. If they are good people, they might be the catalyst for you to buy another property - somewhere for them to live.

Good luck,
Ed

 

[markl]

There have been cases where landlords have taken this to the tribunal and have been able to evict the tenants. Have you spoken to this tenant? Will they consider moving of their own velution. Offer to help pay moving expenses.

One way or another one of the people has to move as they won`t be happy together.

Regards,

 

[timk519]

QUOTE (edlabine @ Dec 6 2007, 10:44 PM) She was there when the people moved in - why is it an issue now, but it wasn`t when they were looking at the apt? My places are all non-smoking and it is clearly spelled out in the lease (must smoke outdoors). Too late to help you, but next time eh?

You need to isolate airflow, which is all but impossible if you have forced air heating that is shared. I lived in a townhouse that was "completely" seperate from another unit below me (it was two townhouses that had been turned into flats so one of them could be made handicapped-accessable), a smoker moved in below me, and I could smell it in my unit.

 

[invst4profit]

Check under the Ontario Residential Tenancies Act.
There are two areas you could look at. Termination for cause under
"reasonable enjoyment" of other tenants or "act impairs safety" of other tenants.

 

[terri]

Hi Wendy,

you mentioned that the house is not a legal duplex but that you are renting out the top and bottom. Before you take steps to evict the smoking tenant, do you know for sure that your basement suite is legal? I know that this is opening up a completely different can of worms, but... the reason I`m asking this is because it sounds like the basement tenant has no intention of either quitting smoking or leaving and if this case went to tribunal or the tenant wanted to cause problems, legality of your basement suite may not be something that you want revealed.

I don`t know anything about Hamilton specific zoning by-laws but here in Toronto I usually contact the zoning office to see what, if any building permits have been previously taken out on the property, if none, then I know the conversion was not done under permit (you may not want to mention the basement to them, just ask to see records of any permits ). Toronto city has a great package put together that any one can pick up on "secondary suites in you home", perhaps the hamilton zoning office has one too, I`m not sure. It outlines all the requirements your basement suite needs to meet Ontario fire and building code standards and is really easy to understand. Or you can look it up on line, it is section 9.8 of the new 2007 Ontario Building Code, but it takes a long time to weed through all the info that does not pertain to you and is very difficult to understand. But you should first make sure that your area is zoned to allow for secondary suites and and all other criteria is met. Believe it or not one of the criteria here in Toronto is off street parking, there must be at least one parking space on the premises for 2 suites and at least 2 parking spaces for 3 suites. Once you know that you are eligible for a secondary suite, then you can call a private fire inspecton company to come out a make sure everything is up to fire. That way, if the basement legality did become an issue at least you would be up to fire code. Charges for non-compliance of fire related issues can be very high, I was told there was a $20,000 fine per missing fire door.

Anyway, I know this is a little (or a lot) off topic, and I don`t want to scare you, but it`s just something to look into if you decide to serve notice to the basement tenant if you think this tenant will try and cause problems. Since this tenant has been there longer than you and at one point was an owner, they may have a strong attachment to the property.

As well, it`s always a good thing to make sure your property is up to code.

Good luck,

Terri

 

[brad]

Fantastic post Terri.

Brad