Smoking is a contentious issue within apartment communities. Many disputes have arisen between lot owners about the smell and smoke drift that occurs between lots.

The most common complaints are usually that the smoke has drifted in through a window on a neighbouring lot and has filled that room with the smell of smoke.

There have been very few options for the affected party to use in hopes of bringing a resolution to the matter. This brought about much anxiety in regards to such issues mainly due to the frustration that is felt about the limited ability to resolve the matter between lot owners.

However, this all changed on December 21st, 2021.

A BCCM Adjudicator found that tobacco smoke drift is a hazard and there was no safe level of exposure to it, so others in the Strata Community must not be exposed to it any longer.

What makes this decision so monumental is that the Adjudicator found that there was not enough objective evidence to establish that the smoking was causing a nuisance. This was the common approach to the smoking issue, that continually failed in the past. The Adjudicators decision to make this a ‘health hazard’ issue is the key. This removed the need for the affected lot owner to have to prove that the ‘volume & frequency’ of the smoke was interfering with the enjoyment of his lot.

The Complainant pursued this matter for almost 12 years. His persistence, due to the serious health issues he was facing from smoke drift coming from a neighouring lot, led to this decision.

Even though an Adjudicators decision does not create a binding precedent, it is common practice that Adjudicators prefer to follow the decisions of fellow Adjudicators. This will most likely result in a widespread flood gate being open on smoke drift within common property if it is deemed that it is a nuisance or a ‘hazard’.

If you would like to read the details of the Adjudicators decision, please click here.

We would like to thank Jason Carlson, Partner at Grace Lawyers for helping us understand this latest decision.

About the Author: George Salloum

George Salloum