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.