The question may seem trivial, not to say obvious. Everyone is free to do what they want at home. Live and let live. In co-ownerships, as it is often the case, the answers are more subtle and the questions numerous.
Society is changing. What was tolerated or even advocated yesterday is no longer acceptable now. What was unthinkable or taboo has become commonplace. Cigarettes (tobacco) were everywhere (movies, restaurants, trains, hospitals!). Now, smoking is on a sidewalk, outside office buildings in the middle of winter. The Tobacco Act is now called the Tobacco Control Act. It is difficult to be clearer about the intentions of the legislator.
Cannabis was discretionary and against the law. Now, there are lines on the sidewalk to get it from the SQDC, even in the midst of a pandemic.
Is smoking an essential good?
Tobacco and co-ownership, a possible duo in 2022?
- Is it legal to smoke a co-ownership?
- Is it possible to smoke within in 9 meters of the building?
- Is it possible to have a smoke-free building or to prohibit certain types of consumption (cannabis, regular/electronic cigarettes, etc.)?
- Do all co-owners have to agree to these rules (unanimity)?
- Can a majority impose its will on the others?
- Can medical justifications (doctor’s bill) override these decisions?
- Is a tenant bound by the building rules or only by what is written in his lease?
- What is the responsibility of the landlord?
- Are there ways to enforce the rules of the co-ownership or the Law?
A debatable topic
In practice, as members of the Board of Directors or managers, you are confronted with these challenging questions.
When the topic surfaces at a co-ownership meeting, it often provokes divisive debates. The freedom of smokers is quickly and invariably pitted against the health of non-smokers: Is it acceptable for a young child to be subjected to a smoker’s second-hand smoke? Is it easy for a smoker to do without? As a co-owner or purchaser, what are your rights or perspectives on these matters?
Co-ownership: a place for compromise
First of all, it is important to remember that divided co-ownership is a very specific legal system. It differs in many respects from full ownership or even undivided co-ownership.
The Quebec Court of Appeal has mentioned the following on several occasions: “The rights of divided owners are less extensive than those of sole owners: they are limited by law and by the declaration of co-ownership…. the rights of divided owners must, in certain cases, give way to those of the community, represented by the syndicate“ [1].
The Civil Code of Québec (“C.C.Q.”) clearly provides as follows (art. 1063 C.C.Q.): ” Each co-owner has the disposal of his fraction; he has free use and enjoyment of his private portion and of the common portions, provided he complies with the by-laws of the immovable and does not impair the rights of the other co-owners or the destination of the immovable.”
Therefore, the collectivity can impose restrictions via the building by-laws on the use that a co-owner can make of his or her private dwelling. These restrictions can be justified by the residential destination (intended use of the building).
This power is not without limitations and must be exercised without abuse, in a reasonable and proportionate manner. Article 1056 C.C.Q. states that ” No declaration of co-ownership may impose any restriction on the rights of the co-owners except restrictions justified by the destination, characteristics or location of the immovable.“. Also, the notion of abnormal neighbourhood disturbances (art. 976 C.C.Q.) is applied in a particular manner in an apartment building. Each co-owner must be aware that he lives next to or above the others.
The Supreme Court of Canada has stated that “home must be the ultimate refuge of every Canadian” [3]. The Charter of Human Rights and Freedoms states (s. 6) that “Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.” It also states (art. 1) “Every human being has a right to life, and to personal security, inviolability and freedom.
He also possesses juridical personality.” It is therefore fundamentally a balance to be found. Moreover, restrictions on individual rights must be supported by justifications. These must be documented and kept in case of a dispute (complaint, expertise). A written record is always preferable, at least in duplicate to a verbal conversation. The memory of a witness is sometimes evolving or diminishing with time.
Smoking ban in common areas
The co-ownership is divided into private areas and common areas, some of which have restricted use [4]. Each owner of a fraction owns privately their own private area (e.g.: apartment) and with the others the common areas (e.g.: corridor or elevator) even if they have the sole restricted use (e.g.: balcony).
The Tobacco Control Act provides that ” smoking is prohibited in the following enclosed spaces” including ” the common areas of residential buildings comprising two or more dwellings, whether or not the buildings are held in co-ownership” (s. 2.7). The term “smoking” also “covers the use of an electronic cigarette or of any other device of that nature” (s. 1.1).
The co-ownership is explicitly subject to this Act. It prohibits smoking in enclosed common areas. It is reasonable to think that common areas are covered, even if the terminology is not strictly identical. One cannot smoke in a common corridor or in the collective elevator. On the other hand, the co-ownership is not subject to the prohibition of smoking within 9 meters of a door, window, or air intake (art. 2.2).
The Syndicate must not tolerate that a person smokes in a place where it is prohibited to do so. Failure to do so may result in legal action. The Syndicate must exercise due diligence by taking all the necessary precautions to prevent smoking, in particular the presence of clearly visible signs stipulating that smoking is prohibited and the absence of ashtrays (art. 11). Surveillance cameras may be used to ensure compliance with the Act.
It is, however, possible to set up an enclosed smoking room, which must meet several conditions (s. 3).
Similar provisions are found in the Cannabis Control Act (s. 12, 13, 17 and 18).
It would be to the advantage of the Syndicate to enshrine this prohibition in the Declaration of Co-ownership by means of a building by-law if it is not already included. This will give the Syndicate the means to apply penalties in the event of a breach of a rule which is part of the Declaration of Co-ownership. Such an amendment may also allow to go beyond the limits of the laws governing tobacco and cannabis. It may contain a prohibition on smoking in all common areas, including those which are not enclosed. For example, someone could be prohibited from smoking on their balcony (restricted common areas). It must be submitted to the general meeting of co-owners and be adopted by a majority and in the required form, depending on whether it is an amendment to the by-laws of the immovable or to the constituting act.
In most cases, this only affects the use which the co-owners may make of the common portions and is in conformity with the often residential destination of the immovable. The majority required for an amendment to the by-laws of the immovable is a majority of the votes of the co-owners present or represented at the meeting (art. 1096 C.c.Q.). The decision must be taken expressly, in the minutes or in a written resolution of the co-owners and be deposited in the register (art. 1060 and 1070 C.c.Q.).
However, one must beware of clauses in the Declaration of Co-ownership which may contradict the proposed amendment and which may require a higher majority (art. 1097 C.c.Q.) and more demanding formalities (art. 1059 C.c.Q.). Once adopted, the modification is opposable to all the occupants of the building, including the tenants, to whom a copy must be given (art. 1057 C.c.Q.). In case of non-compliance with the by-law by the tenant, the owner may be liable for a penalty. In extreme situations, the Syndicate may use its right to
Consumption in private areas and its regulation
The issue is more delicate when it comes to private areas. The laws do not prohibit smoking in the home. On the contrary, they have further expanded the spectrum of what can be consumed. Everyone knows that smoke impregnates the room with its smell. Given the way some co-ownerships are designed, smoke can spread to the rest of the building. Under certain conditions, it can travel to adjacent or simply connected units, whether voluntarily or not, through mechanical systems or poor quality separations between units. This is called second-hand or involuntary smoke. In other words, the co-owner or occupant (e.g. tenant) imposes their consumption on you and the health risks that may result for yourself or your loved ones. For some it may be acceptable, for others it may be intolerable or even dangerous for their health. The Superior Court of Quebec validated a building by-law [5] prohibiting “the use of any smoked product inside all private portions, as well as inside all common portions closed to the exclusive use or not of the co-owners” (our translation). The Court considered that the by-law did not have the effect of modifying the destination of the building but rather was an extension of its residential destination given the non-sealed nature of the dwelling units in question.
The Honourable Chantal Masse j.c.s. adds the following: there is no inalienable right to smoke in one’s unit for each co-owner; on the contrary, the common law on neighbourhood disturbances, article 976C.c.Q. and the specific provision of article 1063C.c.Q.,in competition with the numerous judicial authorities linking the effects of second-hand smoke to the health of persons exposed to it, and the Charter of Human Rights and Freedoms and the right to life and to the security and integrity of the person that it enshrines, tend instead to require abstention from smoking in environments where other persons are likely to have their health affected by second-hand smoke, whether in a workplace, hospitals or residential premises as in this case.
Beyond the principles it sets out, this decision derives from and is linked to the specific evidence in this case. We must be careful not to draw a general principle from this decision to the effect that a by-law is sufficient to make a building non-smoking in all circumstances.
On the other hand, at the other end of the spectrum, cannabis may be used for medical purposes. How should the rights of both parties be arbitrated in such situations? In the first instance, medical cannabis can come in many forms and is not always required to be smoked, nor is it always required to be smoked in the home per se. Secondly, the Syndicate is justified in asking and questioning the medical justification if it is opposed to the adoption of a regulation or to a regulation already adopted.
That being said, there may be situations where there is a real need. In such cases, reasonable accommodation solutions must be sought (dedicated room, outside consumption, work, etc.).