Proving a Landlord Failed to Comply Over a Neighbour’s Smoke

The Dispute

A company bought an apartment in a strata building, hired a property manager to run it, and let it to a new tenant. Within days of moving in the tenant reported a strong smell of smoke coming from a neighbouring suite, and it did not go away. The tenant withheld a month’s rent, spent weeks staying elsewhere, and asked the landlord to cover a five-figure sum in hotel and travel costs.

The Parties’ Positions

The tenant applied for dispute resolution, seeking cancellation of the 10 Day Notice to End Tenancy for Unpaid Rent under sections 46 and 55 of the Residential Tenancy Act, and a monetary order for compensation for damage or loss under section 67. The tenant also sought orders requiring the landlord to provide services or facilities required by law under section 27 and to comply with the Act under section 62. The tenant testified that the odour persisted despite an air purifier, a towel at the door and open windows, that it affected their health and their sleep, and that it drove them out of the unit for periods across the first three months. The cost of those stays away made up the whole of the compensation claim.

The landlord did not dispute that a significant smell of smoke came from a neighbouring unit, and resisted the claim on the ground that it had complied with the Act and the tenancy agreement throughout. The site contact escalated the complaint to the property manager on the day it arrived, and the landlord reported the matter to the strata council and investigated independently. It posted no smoking signs on the floor and in the elevator, which the strata took down. The landlord produced the email exchanges among itself, the property manager and the tenant, and submitted that the source lay in a unit to which it had neither access nor control and that the strata council held whatever remedy existed.

The Outcome

The arbitrator cancelled the 10 Day Notice because the tenant paid the overdue rent within five days of receiving it, so the notice had no effect under section 46(4)(a). On the compensation claim the arbitrator found that the tenant had not proven a failure by the landlord to comply with the Act or the tenancy agreement, the odour having come from a neighbouring unit to which the landlord had no access or control. The arbitrator described the landlord as going above and beyond in addressing the issue, and found no evidence beyond the tenant’s testimony of the effects on their health or of the level of odour in the unit. The claims under sections 67, 27 and 62 were dismissed without leave to reapply, as was the filing fee, and a five-figure exposure fell away for the landlord, which obtained no order of possession, and the tenancy continues.

Key Lessons for Landlords and Tenants in Strata Buildings

• Escalate a habitability complaint the day it arrives and keep the correspondence. The landlord’s answer rested on the record it could produce: same day contact with the property manager, months of email, and reports to the strata council.
• Support a health based claim with evidence from outside the household. The arbitrator accepted that the odour was a major irritant, but found no medical evidence and no measurement of the odour in the unit, and could not find that it had risen to a level unsafe to live in.
• Know what paying within five days actually achieves. Paying the overdue rent within five days of receiving a 10 Day Notice leaves it with no effect. The arbitrator dismissed the filing fee application because the tenant was not successful, the notice having fallen away by operation of that provision and not on the merits.
• Identify who controls the source before choosing a remedy. The arbitrator noted that the tenant had not identified any service or facility the landlord had terminated or restricted, and that the strata council held control over the remedy.

The outcome of this matter turned on the evidence before the arbitrator and on the source of the odour lying outside the landlord’s control. A similar dispute may resolve differently.

ATAC LAW represents residential landlords and tenants at dispute resolution hearings, including matters that turn on the conduct of a strata corporation.

Conducted by Siwei Xu, Associate Lawyer at ATAC LAW, who appeared for the landlord at the hearing. His practice includes residential tenancy matters and civil litigation.