By David Lu
On October 17, 2018, marijuana will become legal in Canada. There are two issues that will be of most concern to condominiums: the smoking and growing of marijuana in residential units. What are the implications for condo boards?
The Cannabis Act does provide some regulation of marijuana that is relevant for these issues. Under the Act, the number of marijuana plants that an individual can cultivate is restricted. Provincially, when the Smoke Free Ontario Act, 2017 comes into force, it will prohibit marijuana from being smoked in enclosed spaces, including indoor common areas in condominiums. But what can condo boards do if they feel that these regulations are insufficient for their condominium?
One suggestion would be for condo boards to treat marijuana the same way they do tobacco. Some condominiums have a Rule or provision in the Declaration that bans tobacco smoking inside units and exclusive- use common areas such as patios or porches. Regulating marijuana could be dealt with in the same way.
Marijuana cultivation in condominiums can also be regulated through a Rule or a provision of the Declaration. For example, growing marijuana on common elements, including exclusive-use yard areas, could be prohibited in the Declaration or the Rules (unless of course the condo board consents to such cultivation). Boards may also want to consider a rule prohibiting the cultivation of marijuana in the units, particularly if there is a risk of harm to the building due to excessive heat or humidity, or if it could result in excessive consumption of water or electricity.
Just like many other condominium-related issues, the goal is to balance the rights of everyone who lives in the condominium community. For example, users of medical marijuana, depending on their specific needs, will generally continue to have the right to grow and smoke marijuana where smoking is otherwise prohibited, pursuant to the Human Rights Code despite any Rule or provision in the Declaration of the condominium.
The key point is that these issues should be dealt with fully and carefully based on the individual circumstances of each condominium. For condominiums that wish to regulate the smoking and cultivation of marijuana in their communities, a Rule or amendment to the Declaration is the safest approach.
For condo boards that are considering regulating marijuana, now is a good time to finalize the rule or Declaration amendment, before marijuana is officially legalized. While a Rule or amendment to the Declaration can be passed at any time, doing so after marijuana is legalized may present problems as some condo residents who consumed marijuana recreationally (after it has been legalized) would need to be grandfathered. This means that, for at least a period of time, the Rule or amendment to the Declaration passed by the condo board would not apply to them.
When marijuana becomes legal, it will be a new era for all of us in the condominium industry. That being said, there are tools available for condominiums that wish to regulate the smoking and cultivation of marijuana in their buildings.
David Lu is an Associate at Davidson Houle Allen LLP, a boutique Condominium Law firm serving Eastern Ontario.