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Cannabis Rules in Condominiums

Cannabis rules for condo

A family recently moved from the downtown condominium unit they were living in to a house in a community north of Toronto. One of the factors that precipitated the move was their neighbour smoking marijuana recreationally. As a family with two young children, their problem was not that their neighbour smoked marijuana, but that the smoke would travel through the walls of their unit and into their son’s bedroom.

With the impending legalization of marijuana, more condominium residents will be inclined to smoke marijuana in their units or in common element spaces. Additionally, the new legislation will allow individuals to grow marijuana plants, which could lead to, among other things,  property damage, an increased risk of fire, and certain units using a disproportionate amount of utilities such as electricity and water (if they are not sub-metered).   The legislation, however, does not give unit owners (or tenants) the absolute right to consume and grow marijuana and condominium boards may be inclined to curtail these actions.

While disputes between condo residents are not uncommon, with the impending legalization of marijuana, the number of disagreements surrounding this issue is likely to increase. Condominium boards that have not turned their minds to this already would be wise to do so now.

Typically, condo boards that have wanted to eliminate smoking have done so by enacting a rule. The Condominium Act, 1998 provides that a condo board may enact a rule to either:

(a) promote the safety, security or welfare of the owners and of the property and the assets, if any, of the corporation; or

(b) to prevent unreasonable interference with the use and enjoyment of the units, the common elements or the assets, if any, of the corporation. The rule must also be reasonable and not be contrary to any provisions of the Bylaws or the Declaration.

The smoking of marijuana could fall under either category as the effects of second hand smoke are well documented. A rule prohibiting the growth of marijuana plants is similarly likely to be permissible under the Act. What is less likely is that condo boards will be able to prohibit the consumption of marijuana altogether. For example, it is unlikely that the eating of edibles would fall under (a) or (b) above. Therefore, any rule prohibiting the consumption of edibles is likely to be unreasonable and therefore be in conflict with the Act. Moreover, any rule prohibiting the use of marijuana would need to account for individuals who consume it for medicinal purposes.

Many condominium corporations already have a general restriction against the creation of a nuisance and the use of a unit in any way which may increase insurance premiums. However, in order to avoid future conflict between residents, condo boards should consider passing a rule which specifically addresses the use of marijuana.

A condominium board can pass a new rule by resolution without consulting with owners, but in order to do so the board must send each owner a copy of the rule and set out the date the new rule will become effective. The rule must specify that fifteen percent of the unit owners have the right to request an owners’ meeting to vote on the new rule within thirty days of the receipt of the notice. If no request is received, the new rule becomes effective at the later of the end of the thirty day period or on date specified in the notice. If a vote is requested on a proposed rule, passing it requires the support of fifty percent of the owners present at a meeting called to vote on it.

As the new law is coming into effect on October 17, 2018, condominium boards interested in banning the use of marijuana should act right away. Boards will not be prohibited from passing a rule after the new legislation comes into effect, however passing the rule prior to legalization ensures the only people to be grandfathered in are those who require cannabis for medical use (as anybody else currently using cannabis would be doing so illegally).

If you have any questions about the use of cannabis in your condominium, please do not hesitate to contact us. We would be pleased to discuss how your condominium corporation may ban or restrict the use of cannabis and any other questions you may have regarding the above or any other matter.

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Haig DeRusha, DeRusha Law Firm