Last week, the government of Canada introduced legislation to legalize and regulate the possession, production and use of marijuana in Canada. What does that mean for your condo corporation? It may be time to update your rules.
Are you considering adopting a rule regulating smoking or cannabis? You may want to survey your owners before you start drafting a rule. Ask us about our arms-length, confidential online survey. This may be the best tool out there to ensure you strike the right balance between collective needs and individual desires.
New Challenges for Condos
The proposed Cannabis Act is expected to create a strict legal framework controlling the production, distribution, sale and possession of cannabis. If passed, this legislation would allow adults to legally possess and consume regulated quantities of marijuana. Of greater concern, it would also allow them to grow up to four plants per household (of a maximum height of one metre).
With these proposed changes in legislation, it is reasonable to expect an increase in complaints and frictions between condo neighbours. The smell of cannabis smoke can be quite potent and can be more disruptive than that of cigarettes. Until now, condo corporations could address the undesirable consequences of pot consumption by relying on the fact that such activity was illegal. This is clearly about to change.
In addition to the nuisance which may result from the neighbour’s use of cannabis, some corporations are concerned with the facts that occupants will be authorized to grow marijuana in their condo units. Already, CBC reported that the Canadian Federation of Apartment Association (which represents landlords managing rentals across the country) has raised concerns with the production of marijuana in multiple-dwellings complex such as condominiums and cooperatives. Some of their concerns include:
- Damage to units and common elements, including damage by moisture from marijuana plants, which can create mould and spores in walls, ceilings and floors and which can damage window seals;
- A disproportionate use of utilities such as electricity and water (if not sub-metered) which are required in great quantities to grow marijuana plants;
- Increased fire hazards due to people drying marijuana in a household stove and sometimes patchy electrical modifications;
- Odours from plants getting into other people’s units.
Tools to Address this Change in Legislation
Most condo corporations already have some (albeit limited) tools to deal with some of the potential challenges expected to be caused by the legalization of marijuana. Indeed, most corporations already have general restrictions against the creation of nuisance (which includes odour and smoke) and against the use of a unit in any way which may increase the risk of fire or which may increase insurance premiums.
Naturally, the difficulty in using these general restrictions is that boards of directors may find themselves stuck between the “user” and the “complaining unit”. The board may then have to determine and demonstrate whether the consumption of marijuana constitutes nuisance beyond what is to be reasonably expected in a condominium complex and whether the activities indeed may result in an increased risk. There are countless shades of grey when balancing the rights and expectations of neighbours when dealing with something as subjective as nuisance and risk.
While I hate to be the one killing the buzz, one of the solutions may be to further restrict (or ban altogether) the use and/or the growing of cannabis in your condo complex. This can be done either with the passing of a reasonable rule or with an amendment to the declaration. Such restrictions are not done through the passing of a by-law.
Boards can, indeed, pass rules promoting the safety, security or welfare of owners and of the assets of the corporation or rules which prevent unreasonable interference with the use and enjoyment of common elements and units. A rule may be passed by the board without any vote from the owners if none is requested by them. Even when a vote is requested on a proposed rule, passing it only requires the support of 50% of the owners present at a meeting called to vote on it.
As indicated above, corporations can also adopt restrictions on the use or growing of marijuana by amending their declaration, although such an amendment would require the support of 80% of the owners.
The fact that Ottawa is legalizing marijuana does not, in our opinion, prevent a condominium corporation from restricting it or banning it altogether.
What’s the best rule for you?
There are countless options for a corporation considering what restrictions are appropriate for their community with respect to the use of marijuana. A rule may impose a complete ban on growing cannabis with a complete or partial ban on its consumption. Some corporation may wish to restrict its consumption to inside the units while others may prefer to restrict it to balconies. Others may prefer to ban it entirely or to limit its consumption to vaping. For this reason, we have developed for our clients a rule which provides flexibility and numerous options. We are happy to discuss the various options available to you.
Whether you have a rule in place or not, some accommodation may be required when marijuana is required for medicinal purposes. This blog post does not specifically address such instances. These will usually have to be addressed on a case by case basis. Corporations should consult with their legal counsel when dealing with such situations.
When Should You Act?
Subject to parliamentary approval and Royal Assent, the Government of Canada intends to provide regulated and restricted access to cannabis as early as July 2018. One of the benefits of acting now is that corporations will not have to struggle with grandfathering provisions. As the saying goes, better to fix the roof on a sunny day.
Needless so say that, until the new law comes into force, cannabis will remain illegal everywhere in Canada, except for medicinal purposes.
What are your views on marijuana in condos: Take our survey.