Major property company tells tenants not to grow
Lawyers question whether rule will be enforceable after pot legalization
One of Ontario’s largest landlords has warned tenants they could be evicted for growing marijuana in their apartments, even as the country ushers in a law that allows home-growing.
The move by Homestead Land Holdings illustrates some of the complicated issues that will arise between landlords and tenants when recreational pot becomes legal in Canada on Oct. 17.
Most of the attention has been on the dilemma of where apartmentdwellers will be allowed to smoke pot. But the law also allows people to grow up to four plants per residence. That is pretty straightforward for those who own a home.
But for tenants in multi-unit buildings, their right to create mini grow-ops is complicated by their obligation not to annoy neighbours with strong smells or damage the landlord’s building.
Homestead is concerned that cannabis growing in its apartments could create hazards such as mould, excessive electricity consumption and fire risk, according to the notice sent to tenants. There could also be a security risk if it becomes known that cannabis is being grown in certain locations, said the policy that applies to tenants in about 25,000 rental units across the province. Homestead has about 35 rental building in Ottawa, mostly highrises.
If tenants cultivate cannabis, Homestead will move to terminate their lease for “interference with the legal interest of the landlord and other tenants at the residential complex,” said the notice.
Two lawyers contacted by the Citizen question whether that rule is enforceable. Landlords can add a no-pot-growing clause to leases for new tenants. However, they cannot unilaterally change an existing lease, said both lawyers.
There is room for interpretation, though. The notice from Homestead says the landlord is allowed to add “additional rules and regulations which govern the term of our tenancy provided such rules do not interfere with your rightful enjoyment of your rented premise.”
Typically, such rules refer to common areas of apartments, said cannabis business lawyer Trina Fraser. “I think it’s a stretch to say that this includes unilaterally banning a legal activity within your unit.
“I doubt that an eviction order would ever be granted on this basis. Yet many landlords are trying to do this. We’ll get some jurisprudence on this issue soon enough, I expect.”
David Lyman, a lawyer who advises landlords on residential tenancy law, agrees that “rules and regulations” usually refer to such things as a change in the hours of the common laundry room. He doubts if a landlord could obtain an eviction solely on the basis of the no-growing rule.
However, if the pot-growing tenant interfered with the reasonable enjoyment of other tenants or the landlord’s legal interest, that would be grounds for eviction, he said. In other words, the cannabis cultivation would have to create a problem before the tenant could be evicted.
Landlords are in a difficult position, Lyman said. “It’s reasonable for a landlord to say, ‘My building is just not designed well for the growing of marijuana.’ ”
Plants require lots of light and humid conditions, which can create mould and add to the electrical load, he said. The smell could spread to adjacent units.
There is no limit to how large the plants can be. “We’re not talking about four tulips.”
Officials at Homestead declined to be interviewed or respond to a question about the enforceability of their no-grow rule. The company released a statement saying there are “still many unanswered questions about how the legalization of cannabis is going to impact everyone, in particular its use within a multi residential building, and we eagerly await the final details of the legislation.
“Many of our residents have been in contact with us to request clarity on how the new legislation will impact the reasonable enjoyment of their homes and in fact have requested if we can convert their building to a non-smoking designation. After careful consideration, and in conjunction with the request of many of our residents we have implemented a new rule in accordance with the Residential Tenancy Act prohibiting the cultivation or growth of cannabis plants within the apartment units or common areas of the building.”
Idoubtthatan eviction order would ever be granted on this basis … We’ll get some jurisprudence on this issue soon enough, I expect.
Several tenants interviewed at Homestead’s two highrise buildings on Fisher Avenue said a potgrowing ban is unfair.
Mike, who has lived in his apartment for a decade, said he feels like a “second-class citizen.”
“I don’t think it’s fair that people with houses can grow it, but people who don’t are penalized. I’d like to own a home, but can’t afford the down payment.”
He probably won’t grow pot, because it will be easier to buy it at stores. But he doesn’t see why others should be prohibited from doing so. Some tenants who live “paycheque to paycheque” may not be able to afford prices at the government stores and want to grow instead, said Mike, who didn’t want to give his last name.
“I don’t know why it would smell inside the building, anyway. People will grow it on the balcony.”
Scott Dobson suggested the landlord should wait to see if it’s a problem. “They can’t just say, ‘You can’t grow it.’ Hey, we have rights, too.”
The issue of home-growing was one of the most contentious in the federal law legalizing marijuana. The federal government maintains that home-growing is an important element of the strategy to fight the marijuana black market.
Opponents raised the spectre of hundreds of grow-ops in one apartment building, and warned about both safety hazards and the possibility that home-growing could be a front for drug dealing.
Home-growing supporters say the danger of fire and mould posed by growing four plants is minimal or non-existent.
While the federal law says Canadians can grow up to four plants per residence, provinces can add other restrictions. New Brunswick, for instance, restricts growing to separate locked areas inside or locked enclosures outside.
B.C., Saskatchewan and Nova Scotia permit landlords to impose restrictions on cannabis growing, even for tenants with existing leases. Ontario landlords unsuccessfully lobbied to be allowed to do the same thing.