As you likely know, in April of 2017, the federal government introduced legislation to legalize and regulate marijuana in Canada. In September of 2017, Ontario introduced its own legislation to address the regulation of marijuana. In Ontario, the exclusive right to the sale of marijuana has been granted (at least for now) to the LCBO.
The legalization of marijuana is sure to be a popular topic for 2018. It is already discussed in mainstream media, on social media, and around the water cooler. It has been discussed at condo industry conferences and seminars. The discussion most recently focuses on what condominiums can do about the legalization of marijuana. I was asked for my thoughts on the matter recently by GlobalNews. You can read the full article here: https://globalnews.ca/news/3985115/condos-marijuana-rules-smoking-ban/.
Concerns for Condos
The legalization of marijuana means that adults will be allowed to possess and consume small amounts of marijuana. They will also be permitted to grow plants in their homes. There will be regulations on many aspects of the legalization, such as the maximum amount a person may possess, in any form (including plants), at any time. Right now, it looks like adults will be able to possess up to 30g and have up to 4 plants per household.
One of the biggest concerns probably stems from the possible damage associated with growing marijuana in the units. Many condos are concerned about possible damage from moisture and mould. Or, on the flip side, the increased risk of fire caused by people improperly using household items to dry marijuana inside their units. If electricity and water are not sub-metered, another concern is the increased cost of utilities that condos may encounter if the residents start growing marijuana in their units.
Apart from the financial concerns, there is a concern that the legalization of marijuana will result in an increase in the number of complaints received by managers as those who enjoy marijuana use it more openly than in the past when it was illegal. For some, the smell of marijuana is unpleasant, which interferes with their use and enjoyment of the property. For others, the situation is even worse as the smoke makes them ill or worsens existing medical conditions, like asthma.
Existing Tools for Condominiums
Once the legislation comes into force condominiums will not be able to enforce against an owner smoking or growing marijuana inside their units simply because the activity is illegal. Fortunately, most condominiums have tools for addressing some of the issues caused by the legalization of marijuana.
Most declarations contain a provision that allows the condominium to recover the costs to repair any damage to the units or common elements from the owner responsible for the damage. These types of clauses could be useful in recovering damages from an owner unless the amendments still to come surrounding the condominium’s ability to charge its costs back to offending owners render these provisions unenforceable.
In addition, most condominiums have nuisance provisions that prohibit owners from using the property in a way that annoys the other residents. These clauses, while useful, can be difficult to enforce because they often involve a degree of subjectivity. The complaining owner may see an activity as a nuisance while the offending owner may see it as ordinary use of the unit. The board and manager are often stuck in the unenviable position of determining if the activity is a nuisance or not. For some activities, like noise, there may be readily available tools to gauge the level of the activity. For smoke or odour that might be more difficult.
If growing is the issue, there are some clauses that might be of some use, such as a clause that prohibits activities likely to increase the risk of fire or increase the insurance premiums on any policies held by the condominium. Again, these clauses involve determinations based, at least in part, on subjective opinions.
New Tools for Condominiums
We are seeing more and more condominiums (7 just last week) passing new rules to address some of the issues discussed above, often along with restrictions on the smoking of tobacco and similar products. In addition to the health consequences associated with exposure to smoke, many condominiums are seeing an increased number of complaints related to smoking and odours. These concerns, along with the horror stories about the damage caused to units by grow-ops, make many boards uneasy about the legalization of marijuana and its possible consequences for condominiums.
In my view, a rule is likely the best option. An amendment to the declaration is almost impossible in many condominiums because it requires at least 80% of the owners to consent in writing. A by-law would be inappropriate as it may not be one of the uses of by-laws permitted in the Act. A rule can be approved by the board of directors. Notice of the rule must be sent to the owners. If a requisition is not received within 30 days of sending the notice the rule becomes effective. If a requisition is received within 30 days of the notice, the rule does not become effective until an owners’ meeting is held and the owners do not vote against it.
Some condominiums are prohibiting the smoking and growing of marijuana completely while others are creating restrictions on it. Some prohibit smoking only on the common elements and owners may smoke within their units or on their balconies. Most condominiums prohibiting smoking will allow owners to consume it in other ways, such as edibles. The rationale is that smoking is more likely to disturb the other residents and allowing owners to consume it in other ways strikes a balance between the rights of the owners wishing to consume it and those who do not want to consume it.
If a condominium is considering a new rule to prohibit smoking, now is the time to act. Once the legislation comes into force the condominium will need to consider grandfathering for existing marijuana users.
Medical Marijuana Users
It is important to note that, regardless of the restrictions put in place, some people will be able to possess and consume marijuana in their units due to medical reasons. The condominium has a duty to accommodate a person’s disability (up to the point of undue hardship), which may include allowing that person to consume marijuana even where it is prohibited in the condominium’s rules. The possible solutions depend on the facts. In some cases, the person can consume it in a way that does not disturb the other residents, such as edibles. A condominium facing an owner with a disability and a request for accommodation should seek legal advice to ensure it is not acting in a manner that could expose the condominium to a human rights claim by the owner.