Marijuana in Condominiums- My Take On the Issue

Marijuana will soon be legal (for persons over a certain age).  Growing marijuana at home, for one’s own consumption and limited to a certain number of plants, will also be legal.  What does this mean for condominiums?

In terms of smoking marijuana on a condominium property, it seems to me that marijuana will be essentially the same as tobacco, subject to special rights surrounding “medical marijuana”.  To me, here’s what this means:

(I)   In general, condominium occupants will be permitted to smoke marijuana only where people are permitted to “smoke” on the property. Pursuant to the Smoke-Free Ontario Act, smoking is not permitted in interior areas of the common elements, nor is smoking permitted in workplaces (for instance, workplaces of condominium superintendents).  Smoking is also not permitted on outdoor patios of bars and restaurants (including bars and restaurants on condominium properties).

A condominium’s Declaration or Rules can also regulate or prohibit smoking in other areas of the property – including outside areas of the common elements (including exclusive-use common elements) and also inside the units.  [Note that grandfathering of “prior smokers” might apply in many cases.]

However, medical marijuana users will normally have the right to smoke where smoking is otherwise prohibited, depending upon their specific needs (for marijuana) and their specific medical prescription.

(II)   In any case, second-hand smoke (whether from tobacco or marijuana) must be controlled. In most cases, the condominium corporation will need to investigate any problem involving unwanted migration of second-hand smoke (often with the assistance of an expert), in order to track down the cause of the migration, and to determine who is responsible to stop it.  There are many possibilities (including sealing between units and/or the common elements; adjustments to air handling and/or exhaust systems; air purification or filtration; air pressure adjustments; etc.).  In some cases, the corporation may have some obligations (to solve the problem).  In some cases, the owner or smoker may have some obligations.  And in some cases, they may both have obligations.  And I stress:  These issues also apply to medical marijuana.

(III)  I also recommend a Rule or a provision in the Declaration to deal with these issues (not only smoking and medical marijuana issues, but also control of second-hand smoke).

In terms of growing marijuana on a condominium property, I again recommend a Rule or a provision in the Declaration.

Even though growing marijuana may be legal (from a criminal law perspective), this doesn’t necessarily mean that condominium occupants have the right to grow marijuana on the property.  Again, it’s my view that growing marijuana could still be regulated in the Declaration or in a Rule.  Here’s my take:

(I)   I think that growing marijuana on the common elements (including exclusive-use yard areas) could generally be prohibited (in the Declaration or Rules) except where the Board consents.

(II)  It might also be possible to prohibit growing of marijuana in the units (again in the Declaration or Rules) – particularly if this could cause harm to the building (for instance, as a result of excessive humidity or heat) or if this could mean excessive consumption of water or electricity. On the other hand, since the number of marijuana plants will be limited by federal law, it may be difficult to distinguish between growing marijuana and growing some other type of plant (in terms of potential harm or excessive consumption of utilities).

(III)  In order to minimize arguments about the reasonableness of a restriction, a provision in the Declaration may be preferable.

(IV)  In summary, in my view the best approach is to deal with these issues fully and carefully, either in the Declaration (an original provision in the Declaration or an amendment to the Declaration) or in the Rules.

(V) Depending upon the specific circumstances, a medical marijuana user might still have the right to grow marijuana (pursuant to the Human Rights Code), notwithstanding any contrary Rule or provision in the Declaration.  But I think that the grower could still be held responsible for any resulting harm or expense to the condominium corporation and/or other owners.

Stay tuned to Condo Law News for more blogs about updates related to condominiums and marijuana.

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The Rights Of Smokers And Non-Smokers Continue To Evolve

The rights of smokers and non-smokers in condominiums continue to evolve across Canada.

The Smoke-Free Ontario Act prohibits smoking in the interior areas of the common elements of all condominiums, and also prohibits smoking on outdoor patios of bars and restaurants (including such outdoor patios on condominium property).

Condominium corporations can also pass Rules to prohibit smoking in other areas of the common elements.

But what about prohibiting smoking in the units?

As revealed by the debate at the most recent ACMO/CCI Toronto Condominium Conference, lawyers in Ontario disagree about the required procedures. Some lawyers feel that prohibiting smoking in the units requires a provision in the condominium’s Declaration. Others feel that this can be achieved by way of a Rule. In my view, a Rule is sufficient. From my perspective, this is precisely the sort of issue that can properly be regulated, in Ontario, by way of a Rule.

I hasten to add, however, that we don’t yet have any Ontario court or tribunal decisions on point – so this is still a grey area.

The other issue is: if a condominium passes a Rule or amends the Declaration to prohibit smoking in the units, are existing smokers grandfathered? Again, there is debate on the point; but we’ve previously felt that there should be reasonable grandfathering of existing smokers. What is “reasonable” may depend upon all of the history and the specific circumstances of the particular condominium, including the configuration of the units and common elements, the availability of “permitted smoking areas” on the common elements, difficulties preventing smoke transfer within the building(s), and other issues.

But it now appears, based on a recent case from B.C., that there may be an argument that grandfathering is unnecessary, at least in some cases.

In the case of The Owners, Strata Plan NW 1815 v. Aradi, the strata corporation passed a “no smoking” by-law; and the Court enforced the by-law against an existing smoker (who had acquired his unit when smoking in the units was permitted). So, the Court confirmed that there was no grandfathering of existing smokers. The smoker in that case has an outstanding claim to the B.C. Human Rights Tribunal, in which the smoker is claiming a right to smoke as an accommodation (for his addiction to smoking). The human rights claim is scheduled to be heard early in 2017 – so there will likely be more to this story.

It is important to note that B.C. law (in relation to the passing of by-laws) is not identical to Ontario law (in relation to the passing of rules); so it’s possible that there may be a distinction between the laws in Ontario and B.C. with respect to this issue.

But the bottom line is as follows: In the future, if a condominium goes “smoke free”, depending upon all of the circumstances, it might not be necessary to grandfather existing smokers, and it may also be possible to consider different durations of grandfathering.

But until we have some more decisions on point, we just don’t know.

For more information about making your condominium “smoke free”,  please contact us.

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Smoke Migration and the Obligations of the Condominium Corporation

A recent court decision, MTCC No. 985 v. Cheney, provides a nice summary of the obligations of a condominium corporation dealing with smoke migration.

In this case, the owners were forced to move out of their unit because of cigar smoke entering from a neighboring unit. The court confirmed that the condominium corporation had a duty to investigate and to take steps to resolve any common element problems that were allowing the smoke migration.

The court said that the condominium corporation had initially failed to act with sufficient dispatch, but had ultimately taken the necessary steps to investigate and deal with the smoke migration problems.

There were, however, ongoing disagreements between the complaining owners and the condominium corporation (and their experts) about the required work. The owners also asked that the corporation’s expert certify that smoke migration would not reoccur. The corporation didn’t feel that it should be obligated to supply such a report.

The court was asked to decide these disagreements. It essentially said that a condominium corporation’s obligation is to provide a reasonable result – not necessarily a perfect result.

Here are the key passages from the court decision:

The Owners now seek what amounts to a guarantee that there will be no reoccurrence [of the smoke migration]. The solution offered [by the owner’s expert] is more likely to provide that. But, in my view, it goes further than can reasonably be required. Not only would it result in wholly disproportionate remedial work being required (if one measures the expense and disruption, on the one hand, against the likely outcomes) but it would go well beyond what is reasonable and required having regard to the age and construction of the building.

To adopt the labels used by MTCC, the standard is one of reasonableness, not perfection, and on that basis, MTCC is not, in my view, in breach of its duties to repair and maintain pursuant to sections 89 and 90 of the Condominium Act, and I therefore decline to make the declarations sought by the Owners in that regard. In particular, I do not accept that I should order MTCC to deliver an engineer’s report as described in paragraph 1(e) of the Owners’ amended notice of application.

So the bottom line is as follows: a condominium corporation has a duty to take reasonable steps to investigate and resolve common element problems that may be contributing to smoke transfer. But the standard is reasonableness. The corporation is not necessarily obligated to guarantee that there will be no further smoke migration.

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