As the entire country is counting down the days to the legalization of cannabis, many condos are adopting rules prohibiting cannabis smoking and growing in units. In many cases, condos also take this opportunity to address tobacco smoking. Invariably, we are asked whether condos are required to grandfather existing smokers when adopting such rules. This question will become even more relevant after October 17, 2018, the date of legalization of cannabis.
What is grandfathering?
By its very nature, the enforcement of a condo rule opposes conflicting interests. For instance, a rule prohibiting smoking may result in two camps. On the one hand, you have owners who benefit from the protection of the rule and are happy to be in a smoke-free environment. On the other hand, you have owners who feel aggrieved or prejudiced in the exercise of what they perceive to be their right to smoke (be it cannabis or tobacco).
Naturally, it is difficult for someone to complain about a rule if it was in existence when they bought or moved in. Indeed, owners should only move into a condo if they are prepared to live by the rule of its community. However, the issue certainly feels different when a new rule proposes to restrict a right one had been able to exercise until that point. Imagine the situation where someone has been able to smoke for years prior to the adoption of a rule. These owners may feel (rightfully) that the rules are being changed on them. Still, the balance of the owners are also entitled to evolve and adopt new rules.
It is in this context that many condos propose to include a grandfathering provision when they adopt a new rule. Such a provision would allow existing occupants to be shielded from the application of the rule for a specific period of time. Stated otherwise, these grandfathered occupants would be authorized to continue a certain conduct, for a set period of time, despite the adoption of the rule.
Is grandfathering required?
We are often asked whether condos have an obligation to grandfather owners or occupants when they adopt a new rule.
In our view, grandfathering is not a legal requirement when adopting a new condo rule. Indeed, the Condo Act, does not impose such an obligation. Grandfathering, however, may go to the reasonableness of the rule being adopted. Indeed, condo rules must be “reasonable”. A rule which does not grandfather an existing right may, in itself, be found to be unreasonable. For this reason, among others, many condos include a grandfathering provision when passing new rules.
So, while it is not a legal obligation, it is often a good idea and is sometimes a required political compromise to ensure that the rule is accepted by owners.
How long should the grandfathering period be?
The jury is still out on the length of an adequate grandfathering period. While some smokers would like to be grandfathered for ever; non-smokers would like to benefit from the rule as soon as possible. It is difficult to reconcile these conflicting interests. Surprisingly enough, we do not have a lot of guidance from the courts on this question.
In our view, the length of the grandfathering period will vary based on the right being grandfathered. Are we grandfathering someone’s right to keep a pet? In such a case, many would argue that the grandfathering provision should last the life of the pet. You basically grandfather Pistache the dog and not the unit. Naturally, you would need to balance this with the impact Pistache has on the neighbours. The same may apply to grandfathering smokers.
The grandfathering period should also consider the disruption or impact it has on other owners. One could argue that no grandfathering provision is required when prohibiting a highly disruptive activity or one likely to damage property or likely to cause an injury or illness.
There is no magic number. In our experience, most corporations grandfather occupants for a period of one to two years. This seems to strike an acceptable balance between the competing rights, giving a reasonable transition period to both smokers and non-smokers. We have seen, however, a few corporations grandfather for up to 5 years and some for the duration of the occupancy: basically for as long as the smoker occupies the unit.
Must we grandfather cannabis user?
Finally, perhaps the most sensitive question: should we grandfather the use of cannabis? It is important to note that this blog post does not deal with medicinal cannabis. These cases require some accommodation. This post only deals with whether to grandfather the recreational use of cannabis.
The answer to this question depends on when the rule was adopted and implemented.
Rules adopted before October 17:
For rules adopted and implemented before the legalization of cannabis, no grandfathering is required. Indeed, there was no “acquired right” to be grandfathered since recreational smoking was not legal before then.
Rules circulated before October 17 but not yet adopted:
What if you circulate your rule to owners prior to October 17, but the rule gets adopted or implemented only after that date? Indeed, rules must be circulated for at least 30 days before they can be enforced. Similarly, owners can requisition a vote on the rule, which may further delay its implementation by an additional 35 days. So, a rule circulated on October 16 may only be adopted by December 20, 2018.
In our view, as long as you circulate the rule to owners before October 17, you do not have to grandfather cannabis users. Indeed, those wishing to be grandfathered are not prejudiced any more than if you had adopted and implemented the rule before cannabis legalization.
Hurry up! You have 4 days to go…. We are, in fact, still receiving requests for such rules and are able to deliver them quickly.
Rules circulated after October 17:
What if a corporation circulates a rule, for the first time, after October 17? We could easily imagine someone lighting up at midnight on October 17. Must that user be grandfathered?
In our view, to be reasonable, any grandfathering must be proportional to the exercise of the acquired right. How long must you grandfather someone who has been exercising a right for one hour, one day or one week? In our view, for the foreseeable future, condos could adopt a rule restricting the use/growing of cannabis without any grandfathering. Naturally, the longer you wait before adopting a rule restricting cannabis, the more you will have to consider a grandfathering provision.
Things may be different however if an occupant purchases or moves into a unit after October 17 but before the rule is circulated to owners. Indeed, new occupants could argue that they have chosen this specific corporation (and not the one across the street) because it allowed cannabis consumption. A condo may be able to strengthen its position by noting on its Status Certificate its intention to adopt a rule on cannabis. In fact, it may be wise to do so even if you are still considering the question.
What’s the best rule?
At the end of the day, the best rule is the one acceptable to owners. The best way to ensure that you strike the perfect balance is to survey your owners.
We have developed an arms-length online survey allowing corporations to canvass their owners on these delicate questions prior to circulating a rule to them. The survey is easy to use and does not require any complicated login. To ensure maximum participation, corporations can choose how long they want the survey to remain open. The information received from owners is kept confidential and only aggregate results are shared with corporations, which provides for more accurate results. Once the results are in, we generate an easy-to-use report for the board. This reports guides the board in drafting the best possible rule and can also be a very useful tool when presenting the rule to owners.
Don’t hesitate to contact us to learn more about this service!
Many thanks to Jason for the great blog topic!