Condos will likely be able to ban residents from smoking marijuana: lawyers

Condo boards in Ontario could set rules prohibiting smoking in units - including smoking marijuana. Alexandra Dudkina / EyeEm

Even after marijuana is legalized across Canada, Ontario condo residents could likely be barred from smoking it at home, lawyers say.

New federal legislation allowing people to consume marijuana recreationally will come into effect in mid-2018, and some condo boards have reportedly been preparing for an anticipated rise in smoking and growing marijuana plants by prohibiting both in condo units.

Condo boards are well within their rights to ban smoking in units, said Trina Fraser, a lawyer who has worked on marijuana issues.

Usually, said Michelle Kelly, a specialist in condominium law, these bans are done by creating a rule. The rule is circulated to owners, and unless owners call for a vote and vote against it, it enters into force. “They have to do it for two purposes though: they have to promote the safety, security or the welfare of the owners, or of the property itself, or prevent unreasonable interference with the use and enjoyment of the units.”

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Secondhand smoke could apply to either of those, she said, as could growing marijuana indoors, as it’s often seen to be damaging to the unit.

The rules have to be “reasonable,” and this means that might not ban smoking marijuana entirely, she said. In some cases, owners might be restricted to smoking only in their units, and not in common areas or on their balconies.

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Over the last five years, she’s seen a growing number of condominiums looking into going smoke-free, and banning smoking entirely from the premises. “Especially with the implementation of the marijuana laws coming up, we’re seeing a lot more people asking for it, that’s for sure.”

She estimates that around 20 per cent of condos are in the process of implementing smoke-free policies. Generally, existing owners are grandfathered in, but as new owners buy units, they’re expected to be smoke-free.

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Tenants who rent a unit from a condo owner are expected to abide by the same rules as everyone else in the condo, she said, and owners can even write clauses into leases that reflect condo rules.

Ontario landlords are currently arguing for the right to change existing leases immediately to prohibit smoking marijuana – even though they would normally have to wait for the tenant to move out before changing the terms of a lease.

Vaping and edibles

Even if people can’t smoke, they will still probably be able to consume marijuana in their condos, Fraser said. “It would be hard to say that consuming cannabis edibly, for example, would somehow jeopardize the safety, security and welfare of the owners.”

She thinks it’s unlikely that a condo would be able to ban someone from consuming marijuana in a way that didn’t involve smoke. “I think it would be overreaching for landlords or for condominium boards to say that you can’t consume cannabis in a non-smoking, non-vapourizing manner when it’s a completely legal activity.”

Medical marijuana

What’s less clear, Fraser said, is whether someone could smoke marijuana in their unit if they’re smoking for medical reasons. A lot of medical marijuana users have told her that they find smoking is the most effective way to take their medicine, she said.

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In these kinds of cases, Kelly thinks that most condo boards would try to work with the owner, to see whether they can use edibles or some other way to take their prescribed marijuana. If not, they can discuss whether other things can be done, like more securely insulating the unit or installing vacuums and air filters, to ensure that smoke doesn’t drift into other homes.

This could lead to legal challenges, Fraser said. “For sure we’re going to see condominium boards (…) trying to ban smoking of medical cannabis. They will try and somebody will challenge it and we will end up with some case law on that topic sooner or later.”

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