By Dickie & Lyman LLP
Who practice landlord/tenant law and other areas of law
Q: Now that the federal Cannabis Act has been passed, making it legal to grow and smoke marijuana, do we know what the situation is for rental properties?
A: The Prime Minister has announced that the federal Cannabis Act will come into force on Oct. 17, this year. Until then, it is still a crime to grow or possess (or smoke) marijuana unless a person has a medical certificate.
On and after Oct. 17, it will no longer be a crime to grow or possess (or smoke) marijuana within the parameters set by the Cannabis Act. For growing, the key restriction is that in any dwelling unit not more than four cannabis plants can be grown by the adults who reside there. That applies regardless of how many adults reside in the dwelling unit, whether there are children in the dwelling, and whether the dwelling is an owner-occupied home, a rental apartment or any other form of dwelling.
However, even though such growing for personal use is not a crime, people may not have the right to grow everywhere, and certainly will not have the right to grow in any way they choose in rental buildings. Quebec has banned all home growing, and probably has the constitutional power to do so. Ontario has chosen not to ban home growing.
However, in rental buildings in Ontario, tenants are obliged to behave in ways that do not impair the safety of themselves and others, and in ways that do not substantially interfere with other tenants’ reasonable enjoyment of their units or with the landlords’ lawful rights and interests.
Landlords can and do police and prevent behaviour that:
• raises the risk of fire (such as the use of grow lamps, which would overload the building’s electrical circuits),
• damages the building (such as elevated levels of humidity),
• interferes with other tenants (if other tenants complain about the smell of budding cannabis plants).
Landlords can and do make tenants limit their smoking. Even now, that applies to both tobacco and marijuana. After Oct. 17, it will continue to apply to both tobacco and marijuana.
By Ontario provincial law, smoking is banned in common areas of rental buildings. Generally, in most buildings, a tenant is expected to put up with occasional exposure to second-hand smoke coming from another apartment, but is not expected to put up with an excessive amount of second-hand smoke.
Avoiding too much second-hand smoke may mean the tenant who is smoking anything may need to smoke on one side of their apartment, to open a window to draw out the smoke or to use a fan to push the smoke out of a window away from the unit of the tenant who objects to the smoke. The landlord should fill any obvious holes in the walls between the smoker’s apartment and other apartments to minimize the entry of smoke.
Once any holes are sealed, if the smoker’s efforts to avoid emitting significant smoke fail more than a few times a year (and the smoke continues to bother another tenant), then the landlord can give the smoker a notice of termination for interference with reasonable enjoyment. This rule is the same for tobacco and marijuana smoke. If the smoker continues to spew out smoke, then a landlord can take them to the Landlord and Tenant Board to seek to evict them.
Full story is available here.