By: Jeff Lack, BAcc, CPA, CGA, Director of Internal Operations
From the WB Condo Connection, Summer 2018
As you are no doubt aware, legal marijuana is coming to Canada. The exact date that legislation will come into effect is still unknown, but is expected to be sometime later this summer, 2018. These significant changes raise the question of how the new legislation will affect condominiums and how the use of marijuana will be controlled.
Not only will adults be allowed to possess and consume marijuana in their homes, they will also be allowed to grow it. The maximum amount of marijuana a person may possess and how much they may grow will be regulated; it appears those amounts will be 30 grams of dried cannabis and 4 plants per household. The two biggest concerns for condominiums relate to odours and mould as a result of users both smoking and growing marijuana. Like cigarette smoke, the smell of marijuana smoke may cause interference with the use and enjoyment of the property for some owners. In other cases, smoke may also adversely affect existing medical conditions such as asthma. The growth of marijuana plants is often associated with high levels of moisture/humidity, which makes resultant mould and potential damage to the unit and common elements a concern.
There are also dangers regarding the improper use of heating equipment to dry marijuana leaves, leading to an increased risk of fire. Lastly, if electricity and water are shared expenses, the increased cost of utilities used by owners cultivating marijuana could become a concern and additional cost for other owners.
What Can a Condo Corporation Do?
Most declarations allow the condominium corporation to recover the cost of repairs for damage to the units or common elements from an owner responsible for the damage. This may alleviate the costs of damage such as mould, but does not eliminate the risks. (It’s worth noting that changes to the Condo Act regulations related to chargebacks are also still pending).
In addition, most condos have nuisance provisions that ensure the “use and enjoyment of all owners” is not negatively affected by another owner. However, these provisions are often difficult to address as they can be subjective.
Beyond these descriptions in the declaration, many condominiums are passing new rules to directly address these concerns. Some buildings are prohibiting smoking and growing of marijuana completely, while others are identifying restrictions such as allowing owners to smoke in their units or on their balconies only, or allowing the consumption of edible marijuana as an alternative to smoking/vaping.
It is important to note that if a new rule addressing marijuana consumption is in consideration, it should be passed prior to
the cannabis legislation coming in to effect – i.e. while it is still illegal for all owners to possess or grow marijuana. Attempting to pass a rule after the fact may mean that all existing owners would need to be “grandfathered” and would be allowed to continue using and growing marijuana until they move out.
Under the recently amended regulations to the Condominium Act, 1998, a rule may be passed by the board of directors and
notice must be sent to the owners, with the rule becoming effective if the owners do not requisition a meeting within 30 days. If they do requisition a meeting, the rule does not become effective until an owners’ meeting is held and the owners do not vote against it.
A Note Regarding the Use of Medical Marijuana
Condominiums have a duty to accommodate a person’s disability and medical needs which may include allowing the use of marijuana even if against the condo rules. If a condominium is unsure of their responsibility in this regard, it is recommended they seek legal advice to ensure there are no violations of the Ontario Human Rights Code.