Smoke Migration and the Obligations of the Condominium Corporation

A recent court decision, MTCC No. 985 v. Cheney, provides a nice summary of the obligations of a condominium corporation dealing with smoke migration.

In this case, the owners were forced to move out of their unit because of cigar smoke entering from a neighboring unit. The court confirmed that the condominium corporation had a duty to investigate and to take steps to resolve any common element problems that were allowing the smoke migration.

The court said that the condominium corporation had initially failed to act with sufficient dispatch, but had ultimately taken the necessary steps to investigate and deal with the smoke migration problems.

There were, however, ongoing disagreements between the complaining owners and the condominium corporation (and their experts) about the required work. The owners also asked that the corporation’s expert certify that smoke migration would not reoccur. The corporation didn’t feel that it should be obligated to supply such a report.

The court was asked to decide these disagreements. It essentially said that a condominium corporation’s obligation is to provide a reasonable result – not necessarily a perfect result.

Here are the key passages from the court decision:

The Owners now seek what amounts to a guarantee that there will be no reoccurrence [of the smoke migration]. The solution offered [by the owner’s expert] is more likely to provide that. But, in my view, it goes further than can reasonably be required. Not only would it result in wholly disproportionate remedial work being required (if one measures the expense and disruption, on the one hand, against the likely outcomes) but it would go well beyond what is reasonable and required having regard to the age and construction of the building.

To adopt the labels used by MTCC, the standard is one of reasonableness, not perfection, and on that basis, MTCC is not, in my view, in breach of its duties to repair and maintain pursuant to sections 89 and 90 of the Condominium Act, and I therefore decline to make the declarations sought by the Owners in that regard. In particular, I do not accept that I should order MTCC to deliver an engineer’s report as described in paragraph 1(e) of the Owners’ amended notice of application.

So the bottom line is as follows: a condominium corporation has a duty to take reasonable steps to investigate and resolve common element problems that may be contributing to smoke transfer. But the standard is reasonableness. The corporation is not necessarily obligated to guarantee that there will be no further smoke migration.

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