A judge grants a “last chance” to a smoking tenant

A judge granted a “last chance order” to a tenant who bothered his neighbors with the smell of his cigarettes. This is not the only story of its kind: a dozen cases concerning tobacco smoke ended up each month before the Administrative Housing Tribunal, again in 2023.

A Saint-Jérôme landlord was fed up with the complaints he received about the smell of cigarettes from a tenant. In recent months, he went to court to have the latter’s lease for the last nine years terminated.

“The landlord explains that the only time he does not receive complaints about the tenant is when the accommodation [au-dessus du sien] is empty,” explains administrative judge Richard Barbe, in a judgment rendered last month.

The owner says he has explored several possible solutions. He offered the smoking tenant to move to the third floor of the building to avoid having neighbors above him. The tenant refused.

The owner had the building’s air exchangers cleaned, but “still received complaints from other tenants regarding the smell of cigarettes.” He also proposed conciliation before the Administrative Housing Tribunal, in November 2022, but the tenant opposed it.

The smell bothers the tenants so much that some ended up leaving their accommodation; others refused to sign a lease when visiting an apartment, says the owner.

The tenant defends himself by asserting that his lease does not stipulate that his accommodation is non-smoking. “He explains that he is 73 years old and that it will be very difficult to stop smoking overnight,” notes Judge Barbe’s decision.

The tenant maintains “that he has ventilated his accommodation several times since the landlord asked him to do so” and that he has “air absorbers and aromatic candles”.

He also claims that he cannot smoke outside, as his landlord requires, because there is squirrel droppings on his balcony.

Based on case law, Judge Richard Barbe could have terminated the lease of the tenant of Saint-Jérôme. He instead decided to grant a “‘last chance’ order” to the 73-year-old smoker.

“The Court grants the tenant a final chance to save his lease. He must be aware of this,” underlines the judge, specifying that it is a “severe” decision. In the event of non-compliance with the order, “the Court […] will terminate the lease.

“A very strong dependence”

According to real estate lawyer Sergey Gerasin, landlords have the right to include a “no-smoking” clause in leases. However, a lease can still be terminated without this clause, he adds.

“The Civil Code of Quebec provides that the tenant is required to behave in such a way as not to disturb the normal enjoyment of other tenants. The court must therefore assess whether the level of cigarette smoke disturbance exceeds the normal and regular disturbance that other tenants must tolerate,” he explains.

In addition to the unpleasant smell of cigarettes, the lawyer explains that he has seen leases terminated due to tenants who made too much noise or who did not allow exterminators to carry out their work adequately.

At the Smoking Cessation Center, affiliated with the CIUSSS de l’Est-de-l’Île-de-Montréal, clinical nurse Marie-Josée Paquet recently received a woman over 80 years old who had to quit smoking by moving to a seniors’ residence.

“It was very difficult for her. She had a lot of withdrawal symptoms. As a clinical nurse, we can prescribe nicotine gum, lozenges and patches to reduce symptoms,” explains M.^me Pack.

The fact remains that most people consult for their health and not because they fear losing their housing, says the clinical nurse.

“The main reason is health. We see people who are backed into a corner, people who have been diagnosed with COPD, emphysema, who have a nodule or a spot in their lung,” she explains.

“Smoking is a very strong addiction,” says the nurse.