Real Estate

Cannabis bans put landlords on shaky legal ground

By Staff

Landlords may struggle to impose cannabis bans on existing tenants in the light of the drug’s legalization for recreational use, Toronto landlord/tenant lawyer Caryma Sa’d tells

The Kingston Whig-Standard reports that one of the province’s major landlords sent out a notice to renters in its 25,000 apartments ahead of legalization, informing them of a new rule barring them from cultivating or growing cannabis in their premises.

“A breach of this rule shall be sufficient basis for the landlord to seek termination of the tenancy based on the tenant’s interference with the legal interest of the landlord and other tenants at the residential complex,” the notice adds.

Sa’d, the founder and principal of SADVOCACY Professional Corporation, says it’s just one of many examples of landlords who attempted to get ahead of the law change by imposing their own bans on use and cultivation of cannabis. However, she says enforcing such bans may not be straightforward, especially where they concern tenants on leases that predate the new rules.

“For existing tenants, landlords should think long and hard about imposing a unilateral change on the lease. Frankly, I’m not sure it’s something that will hold up at the Landlord and Tenant Board (LTB), or in court,” Sa’d says. “We’re talking about something that is now legal, and short of there being complaints about either substantial interference or some kind of damage related to growing or smoking cannabis, it’s unclear on what basis landlords could purport to limit tenants’ rights within units.”

The Whig-Standard story reports that the landlord’s note to residents claims the company is allowed to add new rules as long as they don't interfere with a tenant’s rightful enjoyment of their unit, and explains that the ban was implemented to “minimize the adverse impacts of the growing of cannabis within the confines of rental units, including the environmental and physical hazards associated with mould growth, excessive electricity consumption, fire risks, and security issues that may arise if it is known that cannabis growth is occurring in a specific location.”

A property manager for another major landlord told the newspaper that she was worried about moisture problems, excessive electrical use and insurance issues raised by cannabis cultivation.

According to Sa’d, landlords may be on firmer ground with tenants who arrived after the new rules were imposed since cannabis use and cultivation can then become a subject of discussion and negotiation ahead of the lease’s formal execution.

“In those cases, landlords have a little more leeway to dictate the terms and conditions,” Sa’d says. “The Standard Form of Lease in Ontario contains an option to set smoking rules, which could potentially prohibit tobacco and cannabis alike.”

Either way, she expects to see the issue raised at the LTB or in court as renters and landlords seek further guidance on the limits of their rights.

“In any circumstances, landlords are still required to comply with the Human Rights Code,” Sa’d says, noting that this may come into play for individuals who use the drug for medical purposes.

“Landlords have a duty to accommodate persons with disabilities, so whatever the type of lease, there should be some kind of exemption built in for medical cannabis patients,” she adds.

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