QUESTION : Dear Maria; What can you tell us about the legalization of cannabis and how does it effect the condominium industry?
ANSWER :This is a fairly new topic for everyone and as we learn more about this it seems pretty straightforward on how Condominium Managers in the industry should approach the issue.
To give us more insight on this topic, I reach out to the experts in the industry and here’s what David Cumming, Associate in the Condominium Law Group at McLeod Law LLP, has to say about the
legal use of cannabis in condominiums. The new cannabis legislation in Canada will come into effect on July 1, 2018. As part of this law, not only will possession and consumption be legal, but also individuals will be allowed to grow up to four plants in their personal residence.
There have been questions raised within the condominium industry as to the implications the new legislation will have on condominiums. The new legislation raises concern as to whether challenges could arise under the Alberta Human Rights Act for condominiums that have Bylaws preventing people from smoking marijuana in their units.
THE FIRST QUESTION TO ASK IS: WHY IS THIS AN ISSUE?
The issue with marijuana in condominiums is not the effects of the drug per se, but the smoke and smell associated with it. It causes a nuisance to other owners. Marijuana grow-operations pose similar problems. As David Cummings has heard from “sources”, plants can create a significant odour when they are budding. Lastly, cultivators often create a hot and humid environment to encourage fast growth, leading to concern of mold development and increased utility bills.
Despite these concerns, we don’t anticipate Condominium Corporations will have serious issues. Here are the reasons why. To prevent growing and smoking of marijuana in a unit, Condominium
Corporations will no longer be able to rely on the prohibition found in most Bylaws against doing something illegal in a unit but there are other Bylaw provisions that can be relied upon.
Many Condominium Bylaws, however, still prohibit individuals from smoking in their units or on common property. This applies to marijuana in the same way it does tobacco. For condominiums with a smoking prohibition that want to prohibit tobacco but allow marijuana, or vice versa
THE OTHER CONCERN IS THE POSSIBILITY OF GROWING MARIJUANA PLANTS WITHIN A UNIT, ONCE LEGAL TO DO SO.
would have to have their Bylaws amended to reflect this. For all other condominiums, it is open to them to prohibit all kinds of smoking entirely.
The other concern is the possibility of growing marijuana plants within a unit, once legal to do so. MacLeod Law’s first recommendation is to amend the Bylaws toprohibit unit owners from growing marijuana plants.
McLeod Laws — Condominium Law Group, includes a provision in Bylaws that prohibits the growing of marijuana plants. However, even Bylaws that do not have this provision have other sections, which can be relied upon.
The most applicable provision is the prohibition commonly found in Bylaws against an occupant doing anything, which would void the insurance of the Corporation or increase premiums. It is common language in condominium insurance policies that coverage is void if you have a grow operation, and there is no reason to believe this will change with the passing of the new law. Hence Corporations will still be able to use this provision to stop residents from growing marijuana plants.
The other issue that is often raised is that of Human Rights. The use of marijuana to treat medical conditions is on the rise and will continue to increase once recreational use is legalized. As such, an attempt by a Condominium Corporation to stop a resident from smoking marijuana could be challenged under the Human Rights Act as discrimination on the grounds of disability.
Medicinal marijuana has been used for quite some time, but as far as David Cummings is aware, there have been no cases in which the right of the resident to smoke marijuana in their unit has been brought before the Courts. When and if a challenge is brought, it is doubtful that that a Human Rights Tribunal would force the condominium corporation to allow smoking in the unit.
The first reason is that there is nocompelling reason why a resident who requires marijuana for medical purposes cannot smoke off premises.
A case was brought by an individual in British Columbia relating to tobacco smoking, in this case, the occupant brought a Human Rights complaint against the enforcement of a Bylaw prohibiting smoking. She argued that she was being discriminated against as an addicted smoker (addiction is considered a disability). The decision, upheld by the Court, was that there was no discrimination because there was nothing stopping the owner from smoking outside her unit in the designated areas. A similar reasoning could apply to marijuana smoking.
Secondly, and more significantly, we now have the advent of vaping devices wherein marijuana products are consumed resulting in much less combustion and hence, a negligible amount of
smoke and smell. There are also a number of edible projects available. Hence if a Condominium Corporation makes it clear that they are willing to allow an occupant to consume marijuana in this way, a Tribunal would likely find that not only can a unit owner consume marijuana, but they can also consume it in any manner they choose, despite a completely satisfactory alternative does not create a nuisance to other occupants.
If a challenge is brought to court for growing plants under the Alberta Human Rights Act, it is unlikely that a Tribunal or Court would find that the occupant suffered undue hardship because they were compelled to buy their product from a dispensary rather than grow it themselves.
In summary, although it is difficult to predict what sort of growing pains society and condominiums, in particular, might have as a result of the changes in the law, I do not think it presents any significant legal difficulties for condominium owners and their Boards.
Boards would be prudent to examine the Bylaws and make sure that they properly reflect the choices of the community now that the prohibition against doing anything illegal in one unit will not apply to smoking or growing marijuana.
If an issue does arise, Boards should feel confident in enforcing their “no smoking” Bylaws, and if challenged under Human Rights, Boards should propose edibles and vaping as alternate modes of consumption. Thank you David Cumming, Associate with McLeod Law, for your informative insights into the legalization of cannabis and how it relates to the condominium industry.
Question : Maria, I’m thinking of buying a condo, I do have a pet Maltese Shih Tzu that I cannot bear to live without. Any advice in condo ownership for dog owners?
Answer:You’ve heard me say it a dozen times: “No condominium corporation is alike.” Yes, there is a unique set of condominium rules and regulations and bylaws that governs every condominium.
Some condos may be very strict when it comes to enforcing certain sections of the bylaws, while other condos may be very lenient with those same rules. It’s really dependent on the culture of the condominium you are purchasing. Some say — and I tend to agree — that multi-residential living may not be the ideal place for some pets to live. In most condos, space is limited and pets do not have the freedom to roam as much as they could in a single detached house. Townhomes do offer a bit more space and some have yards for pets, but a pet owner’s responsibility is the same in all cases.
Yet, many people living in condos, or who are thinking of moving into one, consider their pets to be family or a best friend, and living apart from them is not an option. So, if you’re a pet owner thinking about Yet, many people living in condos, or who are thinking of moving into one, consider their pets to be family or a best friend, and living apart from them is not an option.
So, if you’re a pet owner thinking about buying a condo, be sure to read the governing provisions on pets first, and any pet policies that the corporation has developed for that particular condo. Many have pet size restrictions to begin with.
The stickiest subject with pet ownership in condos, indeed the smelliest, is dog poop. It may be a silly topic, but it is a serious problem. I was just reading an article that some Condo Boards in Canada have decided to adopt a Dog DNA Registration Program… Yup, that’s what I said. So watch out CSI Miami here comes CSI 123condo corp.
To my understanding, the program is designed to match waste to the offending pooches and to make residents aware that they can be caught and held accountable for not being responsible pet owners. Lets admit it, picking up after your pet is not an easy task. I get it. we come home from work were tired, and your beloved pet dog, Silvio, needs to go for a potty break and the last
thing we want to do is pick after them.
But, not picking up after your pet and leaving doggie-doo-doo outside your unit is unacceptable under any circumstance. The Canadian Public Health Association (CPHA) has stated; dog waste is toxic, and the viruses, bacteria and parasites found in dog waste can cause disease. It can contain worms, it smells bad and lets face it; it’s a terrible mess to get off your shoes, your
children or worse, your dog’s fur (how many of us have seen our beloved “Silvio” rolling happily in the snow and grass, only to find that he/she decided to coatthemselves with another dog’s poop? It’s gross, but it happens all the time). Yuck! Being a responsible pet owner means; picking after your pets mess immediately after they defecate outside the unit, and taking your beloved pet for a walk outside the complex. It truly does not get any easier then that.
Condos are ruled by bylaws. If you are not willing to follow the bylaws of the corporation you may want to consider if condo living is right for you. Thumbing your nose at the rules is not an option or choosing to ignore the rules because you disagree with them will not make them go away. Consider the social atmosphere before purchasing into a condo. Folks, moral of this story — be a respectful neighbour and please pick up after your pets.