April 27, 2018
A Whole New Take on High-Rise: What Legal Pot Means for Renters and Condo Owners
UPDATE: As of April 30, the Canadian Real Estate Association (CREA) has formally requested an amendment to Bill C-45, calling on the federal government enact a moratorium on home cultivation until a national framework is developed and implemented in all provinces.
Recreational marijuana use is set for legalization this summer, meaning Canadians will be able to consume or grow the drug in the comfort of their own homes. However, not all would-be tokers will get the green light, as legalities for renters and condo dwellers remain, well, hazy.
Under Bill C-45, the Cannabis Act, Canadians will be able to smoke, eat, or vape marijuana, and cultivate up to four plants for their own use, within their private residences. That’s raised concerns of smoking or grow-op-related damage: marijuana plants require high levels of humidity and electricity to thrive, which could lead to insurance, or even mortgage, complications. However, ultimately, it’s up to house owners to decide whether to take advantage of the drug’s newly-minted legal status, and the necessary measures to protect their homes.
Things are a little less cut and dry, though, for renters and condo unit owners. As apartments are often in close proximity to neighbours and common areas, unwanted exposure via second-hand smoke is a growing concern. It’s also not clear how smoking or growing your own pot in a home that’s not legally yours will be addressed by the legislation.
Advocates on both sides of the joint say it’s a nuanced issue, that seeks to respect the rights of all involved – but as with most neighbourly disputes, that’s proving no easy feat as legalization looms.
Related Read: What Homeowners Must Know About Marijuana Legalization
Landlords Want the Power to Protect Investment
One unresolved question is whether landlords will have recourse to protect their real estate assets from damage, risk, and stigmatization should their tenants grow or smoke indoors.
John Dickie, president of the Canadian Federation of Apartment Associations, says the biggest concern for landlords of multi-residential buildings is preventing second-hand smoke from infiltrating other units. The second, he says, is the strain home grows can put on electrical systems, especially in older buildings.
“Many rental buildings were built 40 to 50 years ago – they already struggle with providing enough power for people’s computers and big screen TVs and these sorts of things,” he says. “When many of these buildings were built, the only appliances were the fridge and stove. There’s a concern that the adding of HBS lamps to help marijuana grow will cause shorts or system drains, and that tenants who want to grow will fool around with the fuses – the risk of fires is what that leads to.”
Under marijuana’s existing illegal status, landlords can take action against tenants on the grounds that it’s an unlawful substance; post-legalization, they’ll have to rely on whether the smoke or smell from the drug is impeding on another resident’s reasonable enjoyment of their unit, or creating a nuisance.
“It becomes a question of balancing rights,” Dickie says. “The user wants to smoke more, and the neighbour wants the marijuana user to smoke even less. They’ll all be unhappy, and that’s just not a happy place for a landlord to find themselves in.”
Landlords across the nation have implored the government to ban growing in multi-unit dwellings altogether, an umbrella approach that Dickie says would debunk the argument that renters are disproportionately impacted.
“For the province to ban growing in multi-dwelling units would be a sensible policy move, and it would not discriminate against tenants because some of them are not in multiple dwelling units, and there are plenty of owners who are in multiple-dwelling units in condos,” he says.
The Ontario Real Estate Association has also released a formal recommendation to the provincial government to limit the legal number of grown plants to one from four in units that are smaller than 1,000 square feet.
Renters Want Legal Rights Observed
Dickie believes the most effective way to stem most issues is to focus on preventing smoke from travelling from one unit to another. However, there are calls within the industry to retroactively change leases to ban marijuana consumption in rental properties; while landlords are free to stipulate this condition in brand new leases (as is the case with cigarettes in non-smoking units), adjusting existing tenant agreements would be unprecedented.
And, according to Geordie Dent, executive director of the Federation of Metro Tenants’ Associations, doing so would be out of line.
“Changing three million rental contracts unilaterally in Ontario is nonsense,” he says. “Frankly, if the government was going to do that, they’d probably want to ensure that all those leases that are absolutely riddled with illegal provisions that landlords have forced on tenants or abuse – those would have to be taken out, and in fact, the government has already done that on this issue with their standard lease provision that’s going to come into place May 1.”
He says that while it’s reasonable a landlord wouldn’t want a grow-op in their unit, growing plants on a small scale is unlikely to lead to harmful damage. As well, he says, landlords looking to ban marijuana consumption risk running afoul of the Ontario Human Rights Code.
“It’s difficult because smokers have rights as well, and those have to be respected, particularly for medical cannabis,” he says. “Folks that take medication that is prescribed by a doctor really is of no business to a landlord or other tenant if it’s not bothering them, and it really is an important issue we’ll work on.”
Condos Move to Ban Pot Pre-Legalization
Condo boards, meanwhile, are in a greater position of power when it comes to regulating residents’ pot use. According to a recent report from the CBC, over 400 condo boards throughout the GTA have moved to ban pot in their buildings altogether.
Emerald City Condos in North York, for example, is implementing a rule against pot smoking in units or in common areas. It’s a measure board president Andreea Birloncea says is prudent as the building has already been overwhelmed with related issues, even before legalization.
“We’ve had a lot of complaints from people who don’t want the marijuana odour seeping into their units, and now we’ve had a lot of unit owners writing to us saying, ‘Well, what’s going to happen now that it’s legal, when we already have this many issues when it’s not legal? What will happen when anyone can do it?’” she says.
But would such rules be effective? As the change is not an official condo bylaw – which would require 50 per cent of owners plus one to vote in favour, and would alter the condo corporation’s declaration – condo owners retain the right to requisition a meeting within 30 days and vote on the issue.
Kevin* a renter who has dwelled within the CityPlace condo community for the last seven years, doesn’t think boards will have much power to enforce such a rule should residents choose to break it.
“Condo boards pass a ton of rules that, if challenged, would probably be illegal in one way or another, and wouldn’t be enforceable, so I’m not too concerned about what the condo boards are going to do,” he says. “They do tend to overreach, for example, the rationale behind condos is you’re supposed to be a property owner, but there really isn’t a piece of land that you own.”
He believes the negative impact on units and neighbours has been overblown. “As far as smoking it in your unit, my strong impression is, if you’re educated on the real effects of it, it’s not damaging long term on the condo, and if it’s going to smell bad for the neighbours – I myself have never experienced that. There’s very good insulation and very good sound insulation in these newer buildings.”
However, Birloncea believes a rule is the most straightforward route to take to get ahead of the issues that will arise post-legalization.
“I think with property management and condos, a stitch in time saves nine – as long as you are careful, and educate and remain patient, it shouldn’t be a painful transition, in my opinion,” she says.
“I think it’s important for residents and boards to realize that you are living in a high-density place… Living in a condo is give and take – and mostly you get what you want, but sometimes you have to give, too.”
Read more about Canadians’ sentiments on marijuana legalization and real estate in Zoocasa’s 2018 Housing Trends Report.
*Last name withheld to protect resident’s privacy.