Edmonton Journal 5 Nov 2022 ROBERTO NOCE
There are steps a condo owner can take if the board refuses to enforce a no-smoking bylaw, including legal action, says Roberto Noce
Q I live in a four-storey condominium building. My neighbour is a heavy cigarette (and sometimes marijuana) smoker. The smoke seeps into my unit through the vents. The second-hand smoke really bothers me and my health is being negatively affected. I have complained to the board but they have not taken any steps to address my concerns. Our bylaws state that smoking of any type is not allowed in our building. What can I do? Please help.
Section 37 of the Condominium Property Act clearly says that condominium corporations are responsible for the enforcement of their bylaws and the control, management and administration of their real and personal property, the common property and managed property.
As an owner, you have raised a concern with respect to your personal health and a potential breach of the no-smoking bylaw provision. As the board appears to have failed in its obligation to enforce the bylaws, I would write to the board again and ask the condominium corporation to investigate the matter, and communicate with the smoking owner regarding the circumstances. If this solves the matter, then further steps may not be necessary.
If a resolution is not reached and the smoking continues, the condominium corporation must act. The Condominium Property Act sets out broad remedies for condominium corporations to address instances of breaches of bylaws. Your condominium corporation would have grounds to take legal steps against the smoking owner for breaches of the bylaws.
The case law has made clear that the process of enforcement in the condominium context is an incremental approach. The courts in Alberta have clarified that they have wide jurisdiction and discretion to grant any remedy that is appropriate to the circumstances which includes the power to evict an owner.
Helpful hint: The Condominium Property Act clearly says that the board has a duty to take reasonable steps to ensure each owner complies with the condominium corporation’s bylaws. The board cannot ignore its legal duty to enforce its bylaws.
Another idea is to determine whether or not there is any interest among your fellow owners to force the board to take steps to enforce the no-smoking bylaw provision. You may also want to consider hiring a lawyer to write a letter to the board advising members of your position and demanding that they take immediate steps to rectify the bylaw breaches.
If that doesn’t work, you would have to consider your own legal options, which would include seeking a court order to compel the condominium corporation to take enforcement and compliance steps.
Roberto Noce, K.C. is a partner with Miller Thomson LLP in both the Edmonton and Calgary offices. He welcomes your questions at firstname.lastname@example.org. Answers are not intended as legal opinions; readers are cautioned not to act on the information provided without seeking legal advice on their unique circumstances.
reprinted with permission of Roberto Noce