Real Estate

Can condo boards ban smoking in units?

By AdvocateDaily.com Staff

Health Canada’s proposal to ban smoking in apartments and condominiums is raising questions among condo owners who intentionally purchased units in buildings where smoking is permitted, says Toronto real estate lawyer Lisa Laredo.

Approximately four million Canadians — 15 per cent of the population — smoke, according to a discussion paper published by Health Canada, which indicates it wants to see that number drop to five per cent by 2035, reports CTV.

Some condominium corporations have already taken steps to prohibit smoking — even in the units themselves — by amending the condo’s declaration or its rules, says Laredo, principal of Laredo Law.

“If a condo board wants to make a major change such as banning smoking in units, there are a couple of routes it can take — either amending the declaration or making changes to the rules.”

In a condominium corporation, the declaration sets out how the building is owned and defines the units, the common elements and the percentage of ownership each unit has in the common elements. The board of directors can also make rules to govern day-to-day living for such things as the use of the freight elevator and pet ownership, she says.

If a condo board makes a change to the rules, it will be adopted within 30 days unless at least 15 per cent of the owners call for a meeting to debate the amendment, Laredo tells AdvocateDaily.com.

“If that happens, at least 50 per cent of the owners in attendance have to vote for or against the rule. Changing bylaws is another matter. In that case, it would have to be approved by at least 50 per cent of all owners,” she says.

If owners don’t request a meeting, the new rule becomes effective 30 days after notice and, once in place, it can only be changed by the board of directors, Laredo adds.

The same rules would apply in a situation where owners want to rent their units under Airbnb, Laredo explains.

“Many condos allow owners to rent their units, but not necessarily for short-term stays, so they need to reference the condo’s declaration for the final word," she says.

Moving forward, Laredo thinks more declarations will include clauses that prohibit short-term rentals as it can have a negative impact on other owners in the building.

“When I’m working with a purchaser, I always read the status certificate, the financial statements and look at the operating budget along with the declarations to see if anything out of the ordinary stands out. One important point is to find out how many of the units are tenanted as opposed to owned. If I have a 300-unit building and 150 of them are rented, that might be a red flag for the buyer,” she adds.

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