Is Your Condominium Prepared For Recreational Marijuana?

Is Your Condominium Prepared For Recreational Marijuana?

When Ontario’s Cannabis Act, 2017 comes into effect on October 17, 2018, marijuana use, distribution and sale will become legal. Occupants over the age of 19 will be allowed to use recreational marijuana in their unit or common element space, and grow up to four plants for recreational use per residence/unit.

Why You Should Be Concerned

The legalization of marijuana will likely create tension and complaints towards those who are smoking and growing in multi-dwellings complex such as condominiums. It is reasonable to expect the complaints will have merit and be founded on some of these serious concerns:

• Damage to units and common areas from mould and spores caused by the humidity required to grow marijuana, which can erode drywall, ceilings, floors and damage window seals;
• Overloaded electrical system from growing lamps and disproportionate use of water required for marijuana plant growth:
• Increased risk of fire hazards from growing lamps and drying marijuana in stoves and other electrical devices;
• Odours traveling to other units;
• Health concerns from mould and spores.

How to Address Legal Marijuana in Condominiums

Many condominium corporations have already limited or banned the use of tobacco in condominiums. Condominium corporations also typically have general restrictions against the creation of nuisances and the use of a unit that may increase the risk of fire or insurance premiums. Further steps could be taken to restrict the consumption and growing of marijuana.

To limit or restrict marijuana use in condominiums, including common areas, units, balconies and exterior grounds, two options are available:

1. Amend your Declaration, which requires support of 80 to 90% of the of the owners, depending on what is being changed in the declaration; or,
2. Create a Rule, which is more easily attained than amending the Declaration.

Enacting a by-law to deal with marijuana use is not available because by-laws deal with the governance of condominium corporations.

The best option to limit or restrict marijuana use is to create a rule. The board may make, amend or repeal rules in order to promote safety, security or welfare of the owners and the property and the assets of the corporation, or to prevent unreasonable interference with the use and enjoyment of the units. The rules must be reasonable and consistent with the Condominium Act. The approach should be similar to how other issues are managed, such as tobacco smoking or service animals.

Steps to Introduce a Rule

1. The board approves the new rule by resolution at a board meeting.
2. The board must give notice of the proposed rule to the owners that includes a copy of the rule, date for proposed rule to become effective, statement informing owners of the right to request a meeting, and section 46 and 58 of the Condominium Act.
3. Effective date at least 30 days after the notice was given.
4. The rule becomes effective on the day after the 30 days unless:  a) The board receives a requisition for a meeting of owners by at least 15% of owners, and b) The board receives a majority vote against the rule by the owners present at the meeting.

Why Act Now?

Approving a new rule can be fast and effortless; however, problems may arise and slow down the process. To avoid struggling with grandfather clauses, it is recommended to implement rules regarding marijuana now.

A grandfather clause is an exception to a restriction that allows individuals to continue doing the restricted act, even if the new restriction would stop them from doing that act. In the context of marijuana use, this could mean that if the rule is passed after the legalization of marijuana, owners could argue that they should be allowed to continue smoking and growing marijuana, despite any new condominium rules. Any new rule would only be imposed on new owners/renters who bought a unit after the rule was passed. However, if a new rule is passed before legalization of marijuana comes into effect, owners would have to abide by that rule and a grandfather clause would likely not apply.

Be aware that restrictions imposed on marijuana without an exception for medicinal purposes will likely be subjected to human rights complaints.

If your condo has yet to address the upcoming marijuana legislation, we encourage you to act now and seek legal advice from one of our lawyers.

Doug Shanks is a business lawyer and senior partner in Thunder Bay at Cheadles LLP who practices condominium law in Ontario. He advises condominium boards and owners of their rights and obligations under laws affecting condominiums and their owners. Bryant Oakes is a law student at Cheadles LLP from Lakehead University Bora Laskin Faculty of Law and was instrumental in preparing this article.