I live in a co-ownership where there are a few smokers, one of which is located directly below me. His smoke migrates into my apartment. I am worried of its effects on my health in the medium and long terms, as well as that of my spouse and those of my two children.
Question: Can our syndicate compel these smokers to install an air freshener in their apartment?
Answer: Theoretically not. Article 1056 of the Civil Code of Québec stipulates that "No declaration of co-ownership may impose any restriction on the rights of the co-owners, except restrictions justified by the destination, characteristics or location of the immovable”. Furthermore, Article 976 of the Civil Code of Québec. Provides that “Neighbours shall suffer the normal neighborhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local usage."
This being said, a co-owner who smokes like a chimney, to the point of inconveniencing other co-owners, cannot be insensitive of the harmful consequences generated by his activities. In other words, even though a co-owner has rights, it does not mean he can exercise them abusively, for those who feel slighted can assert their own rights (Articles 6 and 7 of the Civil Code of Québec). Furthermore, Article 1 of the Charter of Rights and Freedoms is very clear on this question: Every human being has a right to life, and to personal security, inviolability and freedom.
An injured co-owner could therefore, in certain circumstances, make an application to the Superior Court and demand an injunction enjoining his neighbor to implement mitigation measures to limit or even stop the migration of his secondhand smoke. If he does not comply, he would be in contempt of court with its dire consequences.
WHAT YOU SHOULD KNOW! To reduce the exposure of its co-owners to secondhand smoke, the syndicate can sometimes undertake work in the common portions of the immovable (such as improving the building ventilation systems).
WARNING! The syndicate may incur civil liability if it is shown that the second smoke migration in another private portion results from a design or construction defect of the immovable, or lack of maintenance of the common portions of the co-ownership.
