Lawyer advises condo boards to set pot rules

VANCOUVER — Homeowner groups need to quickly establish rules for marijuana growing and consumption in an effort to nip any problems in the bud, say lawyers who specialize in property law.

Robert Noce, a partner with Miller Thomson LLP in Edmonton, said the most common troubles in condominium, townhouse and other mixed-use properties will likely be the smell of smoke and potential mould from growing cannabis.

“I suggest that you have an absolute prohibition of smoking and/or vaping in the units and on property, together with an absolute prohibition on the growing of marijuana in the units,” Noce said.

A majority of condo boards, he said, have been amending their bylaws ahead of Oct. 17, when recreational marijuana becomes legal in Canada.

Different provinces have different rules for smoking, and growing cannabis plants at home for personal use.

In British Columbia, almost all condos already prohibit smoking of cigarettes, said Tony Gioventu, executive director of the Condominium Home Owners’ Association of British Columbia.

“So smoking or cultivation with marijuana is an easy modification for most buildings.”

He said the same rules that are applied to cigarettes can be applied to marijuana, adding that a “vast majority” of condos will adopt bylaws that prohibit growing and smoking cannabis in their private homes.

“B.C. is quite far ahead with lifestyle bylaws,” he said.

Local laws in Alberta are to be followed for cannabis consumption, and growing cannabis is limited to four plants, depending on restrictions from landlords.

In Manitoba, New Brunswick, Newfoundland and Labrador, Yukon, Saskatchewan, Nova Scotia and Northwest Territories, smoking will be allowed on private property and in private residences, but landlords can restrict cultivation and smoking.

In Prince Edward Island, cannabis use will be restricted to private homes. In Quebec, marijuana can be smoked where cigarette smoking is permitted.

Rodrigue Escayola, a partner with the law firm Gowling WLG in Ottawa, pointed out that while the federal government is responsible for legalization, it’s been left to provinces, municipalities and condo boards to make their own rules.

A majority of condo owners in Ontario want their boards to regulate marijuana use and growth, Escayola said.

“They want some certainty and they want to know that they will be protected against nuisance.”

He said condos, generally speaking, are moving toward a smoke-free environment, and legalization of cannabis is simply accelerating that.

The challenge for homeowner groups is balancing the greater common good with property rights, he said.

“We say that someone is the king or queen of their homes and when you’re in your home, you can do as you please,” Escayola said.

“This is a very strongly rooted principle in law,” he said. “A person’s home is their castle. In a condo complex, the castles are so close to each other. This is what the struggle is.”

Escayola said condo owners might ask what’s the difference between growing cannabis or tomatoes and question why strict rules are needed.

Marijuana plants require a lot more water, heat and light, which are drawn from the common grid, so everyone’s utilities are affected, he said.

Spores cling to drywall and plants are usually grown to harvest, dry and smoke, which increases the risk of fire, Escayola added.

But all rules should be reasonable, and medical marijuana should be accommodated, he said.

People using medicinal cannabis need to be able to explain to their condo boards why they need to smoke rather than consume edibles or oil, and also why they need to smoke inside their units.

“At some point, it will have to be determined whether or not it is discriminatory to prevent smoking when there are so many options out there,” Escayola said.

Escayola said the longer condo boards wait to establish rules, the more accommodations they are likely to have to make.

“Put your best foot forward first always. You can undo a rule later.”