Prior to the legalization of recreational marijuana in Canada later this year, condominium corporations should be reviewing their declaration and rules to ensure that they contain provisions that will allow the corporation to regulate the use and cultivation of marijuana on the condominium property.
The new federal legislation, which is expected to come into force on July 1, 2018, will not only allow the recreational use of marijuana, but will also permit the cultivation of marijuana plants for personal use.
The Ontario government has also enacted the Cannabis Act, 2017 (which will be proclaimed into force when the federal legislation comes into force) which establishes provincial rules respecting the possession, cultivation and use of cannabis. In Ontario individuals nineteen years of age and older can possess, use and grow marijuana for personal use with a limit of four marijuana plants per household.
The Ontario government is also considering draft regulations which will restrict the smoking of marijuana in indoor or outdoor common areas in condominiums but will allow condominium corporations to designate outdoor areas for the consumption of recreational marijuana. The draft regulations would also allow the smoking of marijuana in private residences that are also workplaces (i.e. work/live units) even though smoking in workplaces is otherwise prohibited. Feedback obtained by the Ontario government from the public and industry stakeholders will be considered before these regulations come into force and there may be changes. (The deadline to submit feedback was March 5, 2018.)
Condominium boards have expressed concerns about marijuana smoke migrating into the common elements or into other units. Other concerns have been about the cultivation of marijuana in units, resulting in increased water consumption and possible mould growth due to the increased humidity and heat needed to facilitate the growth of marijuana plants. The draft regulations, however, if restricting the number of household plants to four, will not likely result in issues concerning water consumption and mould growth.
Prior to the legalization of marijuana, condominium corporations could rely on provisions in the declaration or rules prohibiting illegal activities to prevent or halt the recreational use or cultivation of marijuana on the condominium property. These provisions prohibiting illegal activities can still be relied on if residents sell or distribute marijuana or operate grow-ops that exceed the four plants per household limit.
Even though the legislation will legalize the recreational use of marijuana and the cultivation of marijuana for personal use, condominium corporations can enact reasonable rules or amend the condominium declaration to create provisions that will regulate or restrict these activities on the condominium property. Amending the declaration is difficult as it requires the written approval of the owners of at least eighty per cent of the units in the corporation. However, the board can make reasonable rules that promote the safety, security or welfare of the owners and the property and assets of the corporation or prevent unreasonable interference with the use and enjoyment of the common elements, the units or the assets of the corporation. Rules made by the board of directors become effective after 30 days notice is provided, unless the owners requisition a meeting and vote against the rules at the meeting.
Each corporation will have to decide what rules will be appropriate for that corporation’s owners and residents and in certain circumstances going as far as amending the declaration to prohibit smoking in units. Some corporations may wish to prohibit the smoking and cultivation of marijuana on the common elements, including balconies/patios. Some corporations may allow smoking in the units only if smoke does not migrate to other units or the common elements and if there is any migration require the unit owner to either refrain from smoking marijuana in the unit or alternatively pay for any work or remedial measures necessary to prevent the migration of smoke. If the draft Ontario regulations referred to above become law, some corporations may wish to create a designated outdoor area on the common elements where marijuana smoking will be permitted.
Corporations should also be aware that special considerations may apply with respect to residents who smoke marijuana for medical reasons – under the Ontario Human Rights Code condominium corporations are required to make reasonable accommodations for residents with disabilities.
Any rules that a corporation wants to enact to regulate the use and cultivation of marijuana on the condominium property should be enacted before the legislation legalizing marijuana becomes effective. Once recreational marijuana is legalized, any attempts to enact rules that restrict the smoking and or cultivation of marijuana will no doubt be met by requests for grandfathering by existing smokers and growers.
As we are entering into “new territory”, corporations should be consulting with legal counsel to assist with the development of rules concerning marijuana.