Smoking Inside a Rental Not Unlawful According to Tenancy Tribunal

A recent Tenancy Tribunal decision suggests smokers can smoke in their rental properties even if their tenancy agreement has a "no smoking inside" clause in their Tenancy Agreement.

Residential Tenancies Act

Although the tenancy agreement had a clause stating the tenant could not smoke inside, the tribunal dismissed the application on the grounds that prohibiting smoking was inconsistent with the tenant’s responsibilities under section 40 of the Residential Tenancies Act.

It casts doubt on the legal enforceability of such conditions, which are commonly used by private landlords and professional property managers.

The landlord had applied to the Tenancy Tribunal to terminate the tenancy on the grounds that the tenant breached the terms of their tenancy agreement, after receiving a large number of complaints from adjoining unit owners that the tenant was smoking in her unit, with the smell of smoke permeating into other units through the ventilation system.

The agreement stated, “The tenant may not smoke, or allow others to smoke, anywhere inside the premises including the garage.”

However, Section 40 in the RTA sets out the responsibilities of a tenant and those responsibilities do not include a requirement that a tenant not smoke in the premises.

The premises form part of a unit title development. The rules applying to unit title developments are set out in body corporate rules, and Section 16 B RTA provides that the body corporate rules will form part of the tenancy agreement.

Because Rule 9.7 of the body corporate rules states that “An owner must not smoke in any internal building area of the common property.” And because the unit itself does not form part of the common property, the Tenancy Tribunal says the tenant has not breached the rules.

And with that, the application was dismissed. Yet another judgement that would seem at odds with logic, but thankfully one decision does not set a precedent.