# Evicting tenants - how easy? (Ontario)



## MoneyGal

Thought I'd post this here, because I think there are people here who have practical experience with this issue. 

A close friend of mine lives above a heavy smoker in an apartment with shared ventilation. The tenant apparently signed an agreement not to smoke in the space. He says he is not smoking there but his brother, also his roommate, is smoking. 

Apparently the tenant has been served with a notice that he is interfering with the reasonable enjoyment of another tenant of her rented space. The landlord would apparently love to evict this tenant. 

Questions: 

Is it possible to evict a tenant for smoking? 

If yes, how long would the process take? 

And most importantly: any way to speed the process up?

We are in Toronto.


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## Dr_V

I have absolutely no personal insight into this, but a bit of Googling may help ...



> Restricting pets and/or smoking are two common areas of conflict between landlords and tenants. While the exact rules depend on the legislation of each province and territory (see the Provincial and Territorial Fact Sheets for full details), there are some commonalities.
> 
> In most provinces and territories the landlord can refuse to rent a unit to tenants that smoke and/or have pets. In Nunavut only private landlords can refuse to rent on this basis; public housing landlords cannot refuse to rent a unit because the tenant smokes or has a pet.
> 
> Whether or not a landlord can evict a tenant who violates a "no smoking and/or pets" clause in their lease varies from jurisdiction to jurisdiction. Generally speaking, with the exception of Ontario, landlords can evict tenants for these breaches of the lease.
> 
> To evict a tenant, a landlord must follow the legal procedure set by the province. Many rental authorities deal with the eviction on a case by case basis. To evict a tenant for violating the lease, the landlord is normally required to give the tenant written notice. In the Yukon, the no smoking/pets rule must apply equally to all tenants in a building for an eviction notice to be justified.


And, for Ontario:


> A landlord cannot evict a tenant because they have a pet in violation of a "no pets" clause in the lease. The RTA does not address smoking. However, a landlord may have grounds to evict a tenant, either for having a pet or for smoking, if the pet or smoke damages the property or bothers other tenants.


Reference


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## Racer

Hi MG,

You can evict for smoking in violation of a no-smoking policy that was in place before the person moved in.

Whether it is the tenant himself or the tenant's brother isn't an issue.

You have to describe the smoking as falling within one of the reasons that justify eviction under the Residential Tenancies Act. See http://www.nsra-adnf.ca/cms/file/pdf/Landlord_Guide_2008.pdf. From the link: Past Ont Landlord and Tenant Board decision have recognized second-hand smoke as a breach of the covenant of reasonable enjoyment, and in one case the smell of second-hand smoke was deemed to constitute damage due to negligence (not normal wear and tear) on the part of the tenant."

Here's a link to a website with the eviction forms: http://www.ltb.gov.on.ca/en/Forms/STEL02_111310.html

How easy it is and how long it takes I don't know.

Hope this helps a bit and good luck to your friend!


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## Berubeland

MoneyGal said:


> Thought I'd post this here, because I think there are people here who have practical experience with this issue.
> 
> A close friend of mine lives above a heavy smoker in an apartment with shared ventilation. The tenant apparently signed an agreement not to smoke in the space. He says he is not smoking there but his brother, also his roommate, is smoking.
> 
> Apparently the tenant has been served with a notice that he is interfering with the reasonable enjoyment of another tenant of her rented space. The landlord would apparently love to evict this tenant.
> 
> Questions:
> 
> Is it possible to evict a tenant for smoking?
> 
> Well anything is possible but if the tenant fought the eviction or felt the need to lie about the situation you would probably lose. You would need multiple witnesses and good ones who document things impeccably. Further the tenant in a multi unit building might claim that the smell was not coming from their unit. The tenant might just move many don't fight the eviction process.
> 
> If yes, how long would the process take?
> 
> Up to a year if the tenant contests the case. Such cases have very low priority and if it takes up a lot of time chances of being rescheduled are very large.
> 
> And most importantly: any way to speed the process up?
> 
> The only way to speed it up is to claim impaired safety. For instance if someone was allergic and was the live in landlord in a three unit building or less and had posted it in the ad (which I do in the ad) that no smoking is allowed due to allergies you might have a chance.
> 
> Unfortunately I think the non smoker's rights group brochure is misleading I know of no decision that evicts a smoker for smoking in the home. Further landlords would love to evict pot smokers most urgently. So far no luck with that one either. Do you think it's nice to have a guy smoking tons of pot next to an 80 year old lady who's been in the building for 30 years. She comes down to complain every day.... but won't write anything down. So building management's hands are tied.
> 
> The best chance is for the landlord to just ask them to move. They just might. Her chances at the tribunal are not good with this type of issue. First she has to prove a smell....and document numerous infractions. Plus if it bothers your friend he should at least go to court to help her out. If no one will witness for her her chances are like 0%.
> 
> True case.... I had a guy last year who was stalking the upstairs tenant. The layout of the place required her to walk through a shared common area. Now he would stand in his own apartment naked all the time and would wait for when she would come home from work. He also flashed the landlord. The problem is that there is no law against being naked in your own home. I had to get creative.... impaired safety, illegal acts, quiet enjoyment etc. Still my chances at the Tribunal would suck unless he was stupid enough to admit to flashing. He ended up leaving thankfully so I never had to present this case.
> 
> The Tribunal is very hesitant about intruding on the rights of one tenant over the other and people's private lives in general.
> 
> When you rent out a premises you get legal possession of them and the Board is reluctant to interfere with that legal possession. I compare it to the rights when leasing a car. No one can tell you where to drive, if you can smoke, if you can have your dog in the car, who you choose to invite into the car. You effectively own that car. Same with the apartment. As long as your rent is paid somewhat on time it's yours.
> 
> Sorry to be so glum but that's the truth.


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## MoneyGal

BL that is fantastic. I was really hoping you'd chime in. 

FWIW she is asthmatic and says she's gone from using a puffer maybe once a month to 3x per week, and her child (age 3) is asthmatic as well. The impaired safety might be a good suggestion for them. 

I'd way rather have the glum truth than false hope!


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## Dana

I have never had to evict a tenant (knock-on-wood), but I have paid a tenant to leave. I offered her a good portion of her last months' rent deposit back if she could be out by the end of the week and the unit was spotless. Lucky for me she took the deal and I was able to avoid months of paperwork and tribunals. 

I have a non-smoking clause in my occupancy agreements. I advertise my units as non-smoking. Although most of my tenants are smokers, I have not had an issue with non-compliance. 

My understanding of the matter is that smokers do not have rights as they are not protected from discrimination under the Charter of Human Rights. I have heard so many horror stories from other landlords about how difficult it is to evict in Ontario...if the landlord really wants them out maybe she should try to negotiate an exit strategy with them it may save her time and energy in the long run.


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## Berubeland

MoneyGal said:


> BL that is fantastic. I was really hoping you'd chime in.
> 
> FWIW she is asthmatic and says she's gone from using a puffer maybe once a month to 3x per week, and her child (age 3) is asthmatic as well. The impaired safety might be a good suggestion for them.
> 
> I'd way rather have the glum truth than false hope!


Honestly if my safety was at risk I would move rather than put my faith in the Landlord and Tenant Board to help me. I could move in one month (depending on the landlord) or two rather than have to chance the Tribunal. 

If non smoking was a priority for me I would look for an OWNER occupied house with a second floor apartment. No other tenants!!!


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## Cal

I had a similar situation years ago. It was the tenants above me. They moved in, ripped up the carpets...then their kids and dogs played basketball and floor hockey, or at least thats what it sounded like.

The supervisor, and landlord came over, heard the noise. Same deal, disruption of other tenants rights. The super and LL spoke w them several times, then written notices. Then we went to the tribunal, the process took a few months. Eventually they left. 

I got the feeling from the tribunal that they didn't really want to do anything to/for either party.

In your case, you should go to the tribunal, where all tenants have to show up, have it drag on for the entire day, and when you get your random breaks, take note of the other tenant smoking outside. Take a pic on your cell phone. It should help your case if you can show that they can't go 3 or 4 hours without a smoke.


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## Racer

Berubeland said:


> Honestly if my safety was at risk I would move rather than put my faith in the Landlord and Tenant Board to help me.





Cal said:


> I got the feeling from the tribunal that they didn't really want to do anything to/for either party.


On the same day I read MG's post, I got a call from my sister. She had just called the Board with a question and was really put off by the attitude of the person that she spoke with.

I too have only heard bad things about the Board (I'm from Ont originally). Hope your situation works out. All I can say is that landlords earn every penny they make.


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## iherald

When I was meeting with potential tenants when I was rending out the main floor of my apartment I was very conscious of people that smelled of smoke. It's not a sure proof way, but I figured if I could smell it on them, my apartment would smell like it as soon as they moved in.


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