Breaking Bad Smells in Condos

If there is one thing that the Covid-19 pandemic has taught us, it is that the right to the use and quiet enjoyment of units is not a right that owners and other occupants take lightly. More people than ever before are working remotely or are otherwise at home. Tolerance for nuisances – including those created by unwanted vapours, smoke or other smells - is at a collective all-time low and correspondingly, complaints are at an all-time high.

Condominium and Statutory Restrictions on Offensive Smells

Most condominium declarations or rules prohibit odours which interfere with another resident’s use or enjoyment of their unit.

In addition, as of January 1, 2022, the amendments to Section 117 of the Condominium Act, 1998 (the “Act”) came into force. Section 117 (2) of the Act now expressly forbids any person from carrying on activities that create certain prescribed nuisances, as follows:

(a) No person shall carry on an activity or permit an activity to be carried on in a unit, the common elements or the assets, if any, of the corporation if the activity results in the creation of or continuation of,

(b any other prescribed nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation.

Under Section 26 of the regulations1, un- reasonable odour and smoke are among the prescribed nuisances, annoyances and disruptions.

Is there a Right to an Odour-Free Living Space?

Subject to human rights considerations, there is no right to an odour-free living environment. Rather, occupants have the right to be free from odours (including ones that arise from pets, perfumes, cleaning products, cooking, or other sources) that are substantial and unreasonable2 , typically either because of their intensity (i.e., how strong the odour is) or frequency (i.e., how often the odour occurs and how long it lasts).

Odours that do not meet the unreasonableness criterion are not prohibited. And although it may seem that the threshold for what constitutes “unreasonable” is subjective (after all, what smells like a pleasant fragrance to one person may be a revolting stench to another), the test is actually an objective one, though it is measured with reference to a reasonable person occupying the particular premises in question.

For example, the British Columbia Civil Resolution Tribunal recently found that it was unreasonable for the smell of boiled onions and cooked meat to waft into an owner’s suite from a restaurant in a new mixed-used condominium building3. Anecdotally, the smell was so nauseating to the owner that he was forced to sleep in a hotel.

Similarly, the overpowering smell of cat urine which was noticeable in the hallway outside an owner’s unit and emanating from the unit balcony caused the Condominium Authority Tribunal to recently deem the owner’s cat a nuisance4

Legacy Issues

Some boards have attempted to pre-empt or address complaints about smoke migration by passing rules which prohibit smoking (either tobacco or cannabis) on balconies/terraces and in suites. Can these prohibitions be retroactive? In at least some circumstances, the answer is yes.

The Court upheld this decision on the basis that the corporation had to ensure the protection of the health and safety of the owners and residents.

The Condominium Act does not impose a legacy obligation. However, it does require that rules be reasonable6. Arguably, a “no smoking” rule which does not legacy existing rights may well be found unreasonable in certain circumstances, whereas the same rule with a legacy provision allowing either temporary or permanent exemptions for existing smokers is more likely to be considered reasonable.

Consider the Source

Reducing In-Suite Stink

Suite doors in buildings should never be propped open to clear unwanted in-suite smells. Propping doors actually facilitates the transmission of odours into the building hallways and other units and common areas. In addition, and perhaps most importantly, the front door of a unit is a fire door designed to reduce the spread of fire and smoke between areas of a building. Hallways are required by law to have positive pressure (intended to push smoke and fire back into the unit). Propping open a unit door for any reason is contrary to the provisions of the Fire Code.

Rather, owners and occupants who are generating unpleasant odours should be encouraged or required where appropriate to: i) reduce or eliminate the source of any unpleasant smells. Owner cooperation can be achieved through the normal compliance process by requiring the occupant to remove the source of the odour and, as examples, bathe their pets regularly, clean the unit, cease insuite smoking, or stop lathering layers upon layers of strong colognes; ii) use their in-suite exhaust fans (bathroom and kitchen); and iii) install in-suite air-purifiers to assist in clearing offensive odours.

Remember the Code

In a recent Ontario Superior Court case5, the condominium corporation passed a “no smoking” rule which exempted existing smokers. The rule provided, however, that the legacy (i.e, grandfathering) exemption could be cancelled if there were smoking-related complaints. Given ongoing complaints in that regard, the condominium corporation revoked one particular smoker’s legacy rights such that the rule had retroactive application.

Not all offensive odours in a building or condominium complex are the responsibility of another occupant. Unwanted smells, for example, may emanate from a garbage chute or trash room/area, or result from leaky common element pipes. Therefore the condominium corporation would do well to first find the source of any offensive odours at the outset, so as to determine whether it has any responsibility for remediation or repair of the common elements, including demising walls. 3The Owners, Strata Plan EPS5860 v. F.L.A. Holding Inc., 2021 BCCRT 323 4Metropolitan Toronto Condominium Corporation No. 736 v. Verstova, 2022 ONCAT 1. 5York Condominium Corporation No. 266. v. Jaromira Linhart (Ontario Superior Court) October 15, 2020

6Section 58(2) and Condominium Act, 1998, S.O. 1998, c. 19

In some cases, the offensive odours may be linked to a person with a disability, such as, for example, a medicinal cannabis user or a person with hoarding disorder. In these situations, the condominium corporation is required by the Human Rights Code to actively search for cooperative solutions that properly balance the rights of the person with the disability-related needs with the needs of others in the community, up to the point of undue hardship. These solutions will necessarily be fact-dependent and should typically involve the corporation’s legal counsel.

George Shalamay B.Sc., RCM, President and CEO CityTowers Property Management Inc.