In a decision pronounced on March 17th 2010(1), a landlord was asking for the resiliation of the lease because the tenant had refused to keep up her engagement to not smoke in the building. It was proven, in this case, that before the signing of the lease by the tenant, the landlord had mentioned that the building was non-smoking and that regulation to that effect was being prepared. Tenants were not allowed to smoke inside the building and had to go outside to do so.
When he informed her of the condition, she replied that she was only an occasional smoker. “[translation] By the tenant making no objections about the condition, he concluded that she accepted it.”
In this case, the proof revealed that during the first months of the lease, the tenant did not smoke inside the building, but rather on her balcony, as agreed. Afterwards, the tenant began smoking inside her apartment, under the kitchen fan. The landlord was shortly seized with complaints from other tenants protesting against the cigarette odors in the common areas.
The Régie du logement considered that, in these circumstances, the tenant had defaulted on the obligation to refrain from smoking inside. The Court took into consideration the serious prejudice caused to the landlord, seeing as he had declared for insurance purposes that his building was smoke-free. He consequently was paying discounted insurance premiums. The Court also took into consideration the inconvenience posed to the other tenants due to the cigarette odors. These factors led the Court to conclude the resiliation of the lease and the eviction of the tenant in question as well as of all the other occupants of the apartment.
This decision upholds the principles previously voiced by the Court of Quebec.
In conclusion, a clause forbidding a tenant to smoke in her apartment is entirely legal and opposable so long as it was signed freely during the new lease negotiations. The same applies to any verbal agreement assuming that the condition in question was clear to both parties.
(1) Gaétan Tremblay c. Nicole Gauthier, 02 090922 004 G et 02 091019 002 G, 2010 QCRDL 10281, March 17th 2010
