Real Estate

renter smoking in the basement unit

  • Last Updated:
  • Jan 25th, 2019 1:38 pm
[OP]
Sr. Member
May 9, 2006
695 posts
94 upvotes
Mississauga

renter smoking in the basement unit

HI
is there a way to prove that renter is smoking in the basement? I can smell the smoke smell all over the house but renter is saying he is not smoking. He used to smoke outside all the time in the summer, since weather got cold I don't see him outside but I can smell it everywhere in my house, even in my room on third level. how do I tackle this as I have young kids in the house.
17 replies
Deal Guru
User avatar
Mar 9, 2007
10802 posts
5627 upvotes
Think of the Childre…
Is it in your contract? If yes, kick them out. The end.
djjungly wrote:
Jan 16th, 2019 1:25 pm
HI
is there a way to prove that renter is smoking in the basement? I can smell the smoke smell all over the house but renter is saying he is not smoking. He used to smoke outside all the time in the summer, since weather got cold I don't see him outside but I can smell it everywhere in my house, even in my room on third level. how do I tackle this as I have young kids in the house.

WOULD SOMEBODY THINK OF THE CHILDREN!!!
Deal Addict
Feb 9, 2013
1717 posts
526 upvotes
Mississauga
djjungly wrote:
Jan 16th, 2019 1:25 pm
HI
is there a way to prove that renter is smoking in the basement? I can smell the smoke smell all over the house but renter is saying he is not smoking. He used to smoke outside all the time in the summer, since weather got cold I don't see him outside but I can smell it everywhere in my house, even in my room on third level. how do I tackle this as I have young kids in the house.
Reclaim the property for personal use
Deal Fanatic
User avatar
Mar 23, 2008
9030 posts
5494 upvotes
Edmonton
Here's a start:
https://smokefreehousingon.ca/wp-conten ... -27-17.pdf

You may want to schedule an inspection, as part of your right as a landlord. If you can bring a "witness" to vouch for the smell, that would be good. If you do have a no-smoking clause in your lease, that may be enough to go to the LTB to evict the tenant (or at least start the process). Basically, it would come down to who is more persuasive/trustworthy. Make sure you point out that the tenant is no longer smoking outside (bonus points if you had an ashtray/garbage that used to be filled with butts, and it's no longer being used).

You can't prove that the tenant is smoking downstairs, but they can't prove they're not. It's not a criminal case, so it comes down to balance of probabilities. You need to push the scales in your favor with witnesses and changes in behavior. You will also need to document/prove how the tenant's smoking is affecting either your property (in a negative/damaging way) or your enjoyment of the property.

You can take a read through here:
https://www.canlii.org/en/on/onltb/doc/ ... ultIndex=2

Note the number of repeated attempts to rectify the situation (with documentation on what was done and when). It's not going to be a quick process. But then end result was an eviction and judgment against the tenant for $6k, but that was for a chain-smoker. No idea what would be the result in your case.

Note that in this case, there wasn't actually a no-smoking clause in the lease. But the impact to the other tenants and damage to the unit were the issues.

C
[OP]
Sr. Member
May 9, 2006
695 posts
94 upvotes
Mississauga
Cheapo-Findo wrote:
Jan 16th, 2019 2:01 pm
Is it in your contract? If yes, kick them out. The end.
yes its in my contract, see below. I would need to go to rental board to evict him? his contract ends at the end of March. He claims he is not smoking.

14. The Landlord may terminate this lease for any one of the following or any other cause permitted by law with 15 days notice in written and the Tenant shall vacate the premises:
a) fifteen days arrears of rent or additional rent;
b) the bankruptcy or insolvency of the Tenant;
c) a material change in the use of the Premises by the Tenant and, in particular (without limiting the generality of this provision), any change that affects the Landlord' building insurance or that constitutes a nuisance;
d) any unauthorized assignment or subletting of this lease
by the Tenant;
e) damage to or destruction of the Premises;
f) any sale or material change in use of the building in
which the Premises are located by the Landlord;
g) any significant willful or negligent damage to the Premises caused by the Tenant or by persons permitted on the Premises by the Tenant;
h) not keeping up with the cleanness of the premises;
i) smoking or for any unlawful activity on the premises.
Deal Guru
User avatar
Mar 9, 2007
10802 posts
5627 upvotes
Think of the Childre…
Just don't renew their contract after March to simplify things.
djjungly wrote:
Jan 16th, 2019 2:38 pm
yes its in my contract, see below. I would need to go to rental board to evict him? his contract ends at the end of March. He claims he is not smoking.

14. The Landlord may terminate this lease for any one of the following or any other cause permitted by law with 15 days notice in written and the Tenant shall vacate the premises:
a) fifteen days arrears of rent or additional rent;
b) the bankruptcy or insolvency of the Tenant;
c) a material change in the use of the Premises by the Tenant and, in particular (without limiting the generality of this provision), any change that affects the Landlord' building insurance or that constitutes a nuisance;
d) any unauthorized assignment or subletting of this lease
by the Tenant;
e) damage to or destruction of the Premises;
f) any sale or material change in use of the building in
which the Premises are located by the Landlord;
g) any significant willful or negligent damage to the Premises caused by the Tenant or by persons permitted on the Premises by the Tenant;
h) not keeping up with the cleanness of the premises;
i) smoking or for any unlawful activity on the premises.

WOULD SOMEBODY THINK OF THE CHILDREN!!!
[OP]
Sr. Member
May 9, 2006
695 posts
94 upvotes
Mississauga
Cheapo-Findo wrote:
Jan 16th, 2019 3:26 pm
Just don't renew their contract after March to simplify things.
its not that easy, tenant has full right to stay even after contract is over.
Deal Fanatic
User avatar
Mar 23, 2008
9030 posts
5494 upvotes
Edmonton
djjungly wrote:
Jan 16th, 2019 2:38 pm
yes its in my contract, see below. I would need to go to rental board to evict him? his contract ends at the end of March. He claims he is not smoking.

14. The Landlord may terminate this lease for any one of the following or any other cause permitted by law with 15 days notice in written and the Tenant shall vacate the premises:
a) fifteen days arrears of rent or additional rent;
b) the bankruptcy or insolvency of the Tenant;
c) a material change in the use of the Premises by the Tenant and, in particular (without limiting the generality of this provision), any change that affects the Landlord' building insurance or that constitutes a nuisance;
d) any unauthorized assignment or subletting of this lease
by the Tenant;
e) damage to or destruction of the Premises;
f) any sale or material change in use of the building in
which the Premises are located by the Landlord;
g) any significant willful or negligent damage to the Premises caused by the Tenant or by persons permitted on the Premises by the Tenant;
h) not keeping up with the cleanness of the premises;
i) smoking or for any unlawful activity on the premises.
Who wrote your lease?

I'm not sure that clause is valid. I suspect termination clauses for reasons not specified as valid in the RTA will render it void. You can't give 15 days notice for an eviction, in particular. "Cleanness" is not a valid reason for eviction. "Material change in use of the building" isn't valid, especially with 15 days notice. If the tenant was on a month-to-month lease and you wanted to take it over for personal use, you'd have to provide 60 days notice, and you couldn't do it at all if they were in a yearly lease.

Even if that clause is valid, you would still have to go to the LTB to force an eviction. Without an eviction order, you have nothing. With the right lease and tenant failure to meet conditions, the LTB hearing would be a short and sweet event to get you an eviction order, but then there's still the enforcement of that order if the tenant choses to be an ass.

C
Jr. Member
Apr 15, 2009
128 posts
153 upvotes
toronto
Install a cigarette smoke detector. There’s your proof.
Deal Fanatic
User avatar
Jun 26, 2005
9371 posts
1465 upvotes
Toronto
jdu0ng wrote:
Jan 16th, 2019 2:23 pm
Reclaim the property for personal use
This. This is the easiest, least confrontational route. And 100% legal. But you will not be able to rent it out again for 12 months.

Eviction will take a long time and he can fight it, etc. Personal use is much easier.

Follow all rules of course:
https://landlordselfhelp.com/new-rules- ... s-own-use/
Deal Fanatic
Feb 22, 2011
5817 posts
5496 upvotes
Toronto
Evict them for personal use.

In the meantime I would be sure to be very loud, stomp when walking, when I know they are sleeping. Then if they complain just say sorry it smells like smoke all the time and I have to stomp around to find the source.
Deal Fanatic
User avatar
Mar 23, 2008
9030 posts
5494 upvotes
Edmonton
Keep in mind that you can't evict for personal use until the lease has gone to month-to-month, and it will cost you a month's rent. Plus you'll have to give 60 days notice (from the end of the annual lease, I believe), so end of May as the earliest date. Which may be easier/quicker than fighting for an eviction based on something like "I smell cigarette smoke"...

C
Deal Fanatic
Feb 22, 2011
5817 posts
5496 upvotes
Toronto
CNeufeld wrote:
Jan 17th, 2019 12:28 pm
Keep in mind that you can't evict for personal use until the lease has gone to month-to-month, and it will cost you a month's rent. Plus you'll have to give 60 days notice (from the end of the annual lease, I believe), so end of May as the earliest date. Which may be easier/quicker than fighting for an eviction based on something like "I smell cigarette smoke"...

C
This part is incorrect, you just have to give 60 days notice and the lease has to be done so you can give the eviction notice 2 months before the end of the lease and they have to leave the last day of the lease;

"The termination date in the landlord's notice of termination must be at least 60 days after the notice is given and must be the last day of a fixed term tenancy, or if there is no fixed term, on the last day of a rental period."
http://www.sjto.gov.on.ca/documents/ltb ... 20Use.html

So in this case OP can give the eviction notice at the end of January, or in 2 weeks, to evict for end of March.
Deal Fanatic
User avatar
Mar 23, 2008
9030 posts
5494 upvotes
Edmonton
mazerbeaner wrote:
Jan 17th, 2019 12:37 pm
This part is incorrect, you just have to give 60 days notice and the lease has to be done so you can give the eviction notice 2 months before the end of the lease and they have to leave the last day of the lease;

"The termination date in the landlord's notice of termination must be at least 60 days after the notice is given and must be the last day of a fixed term tenancy, or if there is no fixed term, on the last day of a rental period."
http://www.sjto.gov.on.ca/documents/ltb ... 20Use.html

So in this case OP can give the eviction notice at the end of January, or in 2 weeks, to evict for end of March.
That's good news for the OP, so they can get on that ASAP if that's the path they want to follow.

C

Top