What are the responsibilities of a condominium corporation where second-hand smoke is emanating from one unit to another? Are there additional responsibilities where the complaining owner is allergic to cigarette smoke?
These were the questions that were posed in a recent Alberta case, Hnatiuk v. CCC No. 032 2411. A unit owner, who was allergic to cigarette smoke, complained about smoke emanating from the unit below.
The condominium corporation retained a contractor to investigate this issue. After opening up the bulkhead located over the furnace room in the lower unit, it was discovered that the fire separation between the units had not been installed. The fire separation and other remedial work was done in the bulkhead. However, the owner complained that while the amount of smoke emanating from the unit was reduced, it was not eliminated. The owner felt that the second bulkhead should be opened up to see if a fire separation had been installed in this area as well.
The condominium corporation took the position that by installing the fire separation in the first bulkhead, it had satisfactorily resolved the issue to an acceptable standard. It further felt that it should not be obligated to open up the second bulkhead without any positive indication that there was a deficient fire separation in the second bulkhead. The Corporation offered to open up the second bulkhead on the understanding that if there was a fire separation meeting building code standard, then the complaining unit owner would be required to pay for the investigation costs.
Because this was an issue involving the health and safety of unit owners, the court determined that it was the responsibility of the condominium corporation, at its expense, to open and inspect the second bulkhead. The unit owners were also awarded the costs of their application.
This case emphasizes that it is the condominium corporation’s duty to fully investigate the cause of any second-hand smoke migration, especially when the owner complaining has health issues resulting from, or exacerbated by, the second-hand smoke.