Condo corporations must confront a hazy matter
Issue of cannabis consumption in individual units sparks debate about existing smoking rules
At its 2017 annual general meeting, the directors of a Wellington St. condo informed residents they were going to start looking at the question of regulating cannabis use in the building.
The decision, says board president Martin Gravel, was motivated in part by the imminent legalization of the drug, but also stories about a long-standing legal feud over marijuana use at a King St. loft.
But when the board’s lawyer proposed a bylaw amendment banning all smoking, “there was shock and awe,” he recounts. Despite that initial reaction, the new rules, which grandfather existing cigarette smokers, came into effect in August.
With the clock ticking down to legal weed day, a growing number of condo communities are tackling the thorny question of what to do about marijuana use in individual units. Many have circulated surveys to their residents.
Yet as condo lawyer Audrey Loeb, a partner with Shibley Righton LLP, points out, many others “are doing absolutely nothing” to alter their rules.
To date, most of the public and media attention about this issue has focused on a few high-profile cases, such as a Mississauga woman with a life-threatening allergy to marijuana smoke. But these sorts of conflicts are exceedingly rare, and tend to be addressed using human rights laws.
For the majority of condos, however, the marijuana use question is not only less extreme, but has yielded an unintended consequence in that it is forcing condo boards to confront long-standing questions about cigarette smoking.
“With the legalization of cannabis and more smoke penetration issues, individuals got together and asked if it’s possible to ban smoking,” says Denise Lash, a condo lawyer and founder of Lash Condo Law. Most developers don’t promote smoke-free projects. And once a building is occupied, it is difficult under existing condo legislation to have it made smoke-free because more than 80 per cent of the residents need to approve such a declaration.
Today, in cases where residents are formally complaining about smoke filtering from unit to unit, boards and management companies have relied on nuisance provisions in the law to resolve conflicts, often by retrofitting units with additional caulking and other physical barriers to smoke penetration.
Boards had no choice but to get involved in neighbour-toneighbour issues, says Lash, but generally stuck to the principle that owners or tenants could do what they want in the privacy of their own homes.
But with marijuana legalization looming, Lash says she changed her view on no-smoking policies.
She now advises condo boards to propose new non-smoking rules with exemptions at annual general meetings, and these are typically adopted unless residents object and have the numbers to vote down the rule at a meeting.
“Very rarely do owners ask for a meeting to vote down a rule,” says Chris Jaglowitz, a partner at Gardiner Miller Arnold LLP.
Gravel says that at his Wellingston St. condo, a few residents responded negatively at first, but they didn’t organize to object.
The reason may have to do with the use of the grandfathering provision for smokers. In his building, 29 residents in 21 units (out of 102) sought the exemption. It comes in the form of an agreement with the condo board, is non-transferable and expires as soon as the individual moves.
The timing of these new policies has also become important: if condos introduced such rules before cannabis legalization came into effect, there could be no provision for grandfathering marijuana smokers per se, because prior to Oct. 17, no legal right to use the drug recreationally existed in law.
“You nip it in the bud, so to speak,” says Jaglowitz.
Loeb and Gravel point out that non-smoking rules put the legal onus on smokers, instead of the condo corporation, to remediate smoke penetration issues at their own cost.
These new policies also tend to include prohibitions on the cultivation of marijuana — the new legalization legislation allows four plants per household — and smoking anything in common areas, including balconies (in most buildings, bal- conies are owned by the condo corporation, not the individual unit owners).
In some cases, the rules do allow smoking, of either tobacco or marijuana, on the building grounds in designated areas, though not in places like rooftop terraces.
Loeb, however, admits that it is not yet clear whether these rules will hold up if challenged in court.
It also seems unlikely that new antismoking policies will lead to more intrusive oversight by condo boards and management companies, which will only respond to complaints, as they currently do.
“They can’t just go in to see if there’s compliance,” says Lash.
What’s more, the change in smoking policies will not apply to other now legal cannabis products, such as oils or edibles.
Some condos have at least bruited the idea of banning these products.
Kyle Spaans, a software developer who rents in a condo near Front and Church Sts., says the board there proposed boilerplate bylaw changes seeking to ban all smoking, as well as cultivation and edibles, at a recent residents’ meeting.
“I raised my hand and asked, ‘Why are you including edibles?’ ”
After some discussion during the meeting about the difficulty of enforcing such a rule and the potential slippery slope — i.e., if edibles, why not alcohol — the board dropped the language from the proposed bylaw change.
In cases where a building has adopted a no-smoking rule with exemptions, and a resident is smoking medical marijuana, that person may be asked to switch to cannabis products that can be ingested unless they can provide a doctor’s note affirming that cannabis cigarettes are the only way they can take the medication.
As these policies spread in response to legalization, Loeb expects more and more condos will become entirely smokefree.
That means the eventual end of long-standing irritants, like cigarette butts being flicked out of windows or off balconies.
In fact, Options for Homes, a non-profit developer, this spring launched a new project, The Humber, that only allows vaping.
A new survey of 802 people conducted by Options also found that almost 75 per cent of respondents said they were more likely to buy in a building that didn’t allow any kind of smoking or vaping.
Making a comparison to commercial buildings, which have been smoke-free for many years, Loeb offers a prediction: “I think in 10 years, no multiunit residential building will permit smoking.”
“I think in ten years, no multi-unit residential building will permit smoking.” AUDREY LOEB CONDO LAWYER, SHIBLEY RIGHTON LLP