Deal with it sooner than later: Cannabis and Condos

The legalization of cannabis has been the subject of intense debate, but the date of legalization has been set: October 17, 2018. This date creates some real urgency to have boards consider their bylaws, as I will discuss below.

The Cannabis Act is a complex piece of legislation covering many aspects of legalization. For the average Canadian, the most material change is that they will be able to possess 30g of “of legal cannabis, dried or equivalent in non-dried form” and they will be able to possess up to 4 cannabis plants for personal use.

This change creates a new issue for condominium corporations who might have been relying on a provision restricting illegal conduct to stop their tenants and owners from smoking cannabis inside of their unit. At the very least, the legalization creates an opportunity for the condominium corporation and its owners to explore their shared values on the subject.

So what are the issues in this hot button topic for condos?
• Nuisance/Smoke Migration – Smoke will often travel between adjoining units. For some, the smell and smoke by caused cannabis use is an unpleasant nuisance. It may also cause health issues or cause those exposed to second hand smoke to be exposed to the drug itself.
• Human Rights – Some users may use cannabis as part of their medical treatment, and may have challenges in using a smoke free method of consumption, or to smoke outside. The condominium corporation may have an obligation to accommodate to the point of undue hardship.
• Property Value Changes – Developers are often silent on this issue, likely out of concern that any restriction on smoking may reduce the pool of potential purchasers. However, the trend towards less smoking may have the effect of increasing values for those that are sensitive to its presence.
• Humidity issues – Growing plants for personal use may have the effect of increasing humidity levels in the condominium. The increased humidity levels could create a better growing environment for mold.

So why the urgency?

In many situations, it is suggested that corporations “grandfather” the right of existing owners and tenants when removing existing rights that would materially impact their enjoyment of their units. By dealing with it prior to the legalization date, it could remove the right to use cannabis in the units before it is actually provided.

Many condominiums are finding that this is a good time to deal with smoking in units as well. It allows them to create a structure to become smoke free in all respects, and to do so in a fair and timely fashion.

However, to complete this prior to the October 17, 2018 legalization date there are a number of steps required to be completed around amending bylaws for a corporation. That is to say nothing of any community consultation or discussion that you may want to have as a community.

As always, my recommendation would be to consult with your lawyer, and get a game plan for how you are going to proceed.

What about Rentals?

That’s a whole different ballgame. I will deal with the issue in the next article.