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Tenants Right to Quiet Enjoyment
If tenants can show that second-hand smoke (SHS) is infiltrating their home from a neighbouring unit or balcony on a frequent and on-going basis, and substantially interfering with their quiet enjoyment, then landlords have a duty to act to address the problem.
What is Quiet Enjoyment?
Quiet enjoyment, defined in simple non-legalistic terms, is not the absence of noise, but rather the presence of peace. The right or covenant of quiet enjoyment has been part of the common law for centuries and is an implied part of every tenancy. In BC, this right is enshrined in s.28 of the Residential Tenancy Act, which includes the right to "freedom from unreasonable disturbance". A landlord must provide quiet enjoyment to all tenants. And all tenants must ensure that their actions or the actions of their guests do not unreasonably disturb other tenants.
Is SHS a breach of Quiet Enjoyment?
Yes, in certain circumstances, SHS can constitute a breach (or loss) of quiet enjoyment, even in buildings where smoking is allowed in private units. Landlords should be aware that the ability to smoke is not absolute, and is limited by the right to quiet enjoyment of neighbouring tenants. If tenants can show that SHS is causing an unreasonable disturbance, and substantially interfering with the enjoyment and use of their home, then landlords have a responsibility to take steps to resolve the problem.
Note: If a landlord fails to take reasonable steps to address an ongoing problem, such tenant may apply to the Residential Tenancy Branch for an “order requiring the landlord to provide quiet enjoyment and/or compensate tenants for their loss of quiet enjoyment.”
Addressing complaints of Second-Hand Smoke: Duty to Act
Many landlords are reluctant to address complaints about second-hand smoke where smoking is permitted in some or all rental units. But they would be wrong to assume that they have no authority to address these complaints. The BC Residential Tenancy Branch has developed Policy Guidelines on the Right to Quiet Enjoyment. While these Guidelines do not include SHS as an example of what could result in the loss of quiet enjoyment, they do include other examples of what could be considered a loss of quiet enjoyment – such as “unreasonable and on-going noise.”
Addressing the issue of SHS is similar to addressing the issue of loud music. While playing music is allowed in private units, when it’s played too loudly and significantly interferes with the quiet enjoyment of other tenants, landlords can take steps to stop this intrusion, including last resort steps to end the tenancy. Complaints of SHS can be considered a breach of quiet enjoyment and should be addressed accordingly.
Further, there is case law in BC Supreme Court where a Judge found that:
"It is conceivable that the exposure of a tenant and her children to second-hand smoke, with all of the associated health risks, could interfere with quiet enjoyment or breach the tenant's right to be free from unreasonable disturbance."
A landlord is required to take reasonable steps necessary to address a breach of quite enjoyment. The RTB guideline states: “A landlord would not normally be held responsible for the actions of other tenants unless notified that a problem exists, although it may be sufficient to show proof that the landlord was aware of a problem and failed to take reasonable steps to correct it.”
What are considered reasonable steps will vary with the facts of each situation. Past RTB dispute resolution decisions have varied, from attempts to broker a compromised solution, limiting the smoking by a tenant to certain hours, offering the affected tenant alternative accommodations, and evicting the smoking tenant.