Real Estate

Condo corps will face battles with recreational weed

By AdvocateDaily.com Staff

Condominium corporations may consider taking steps to protect condo owners when recreational marijuana becomes legal in Canada next July, Toronto real estate lawyer Lisa Laredo tells AdvocateDaily.com.

She expects that existing legislation, which restricts cigarette smoking, will also be applied to marijuana smoking. And it might be a good idea for condo boards to examine the restrictions they currently have on the books ahead of the legalization, suggests Laredo, principal of Laredo Law.

“The Smoke-Free Ontario Act currently only speaks to tobacco,” she says. “In 2016 the legislation was amended by adding section 12.1 to allow the government to prohibit the smoking of prescribed substances and materials, but it is not yet proclaimed into law.”

The Toronto Star reports that legalization for those 19 years and over is expected to result in a jump in disputes in condominium complexes related to both indoor and outdoor smoking.

While there is no prohibition on smoking within the confines of a unit, the law prohibits smoking or holding a lighted cigarette in common areas — recreation facilities, gyms or laundry rooms. The onus is on the “proprietor” — or the condominium corporation to enforce those rules, says Laredo.

But she expects that the ban probably does not apply to exclusive-use common elements such as a balcony because it is not “an enclosed public space” and may not be considered a “common area” for the purposes of the Act because that appears to only apply to sections where the public has access.

That’s where Laredo anticipates problems may occur.

A conflict may develop when smoke escapes from one balcony and drifts off onto another, she says.

“The common law of nuisance prevents an owner from allowing a noxious odour from escaping from his land if it interferes with the reasonable expectation of a neighbour to the peaceable use of their land. Where there is evidence that smoke is escaping from a particular unit and is preventing the reasonable use by a neighbour of his balcony or unit, the aggrieved owner may have a cause of action in nuisance against the originator of the smoke,” Laredo says.

In that situation, the dispute is between the unit owners and does not impose an obligation upon the condominium corporation, she notes.

But if the noxious smoke travels from one unit to another through the common elements, such as through a space in a wall or floor, the corporation could be drawn in.

“The condominium corporation has a statutory obligation to repair the common elements,” Laredo says. “It is therefore obliged to take all reasonable steps, in a reasonable time, to address the seepage problem and stop it.

“What is reasonable to the aggrieved owner may not be reasonable to the condominium corp so the appropriate remedy may be the subject of debate.”

She suggests condo corporations revisit their bylaws related to smoking, whether it is tobacco or marijuana.

A smoking prohibition in the corporation’s declaration is enforceable, but most bylaws do not have such an exclusion, she says. With approval from 80 per cent of the units, it is possible to amend the declaration to impose a smoking prohibition.

Another option is for condo corporations to pass rules to prevent unreasonable interference with the use and enjoyment of the common elements and the units.

“Therefore, the corporation may pass a reasonable limitation on the right of an owner to smoke within his unit or on his balcony. Provided the proposed rule is not vetoed by a vote of the owners, it is enforceable by the condominium corporation,” Laredo says.

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