Real Estate

Legal advice on marijuana crucial for condo boards

By AdvocateDaily.com Staff

Condominium boards should think about whether restrictions on marijuana smoke are needed in their buildings before legalization takes effect later this year, says Toronto condominium and commercial litigator Megan Mackey.

“Boards that want to implement new rules should certainly consider doing so before marijuana is legalized. That way, they can avoid issues of grandfathering,” says Mackey, a partner with Shibley Righton LLP.

The federal government had hoped to fully implement its legislation by July 1, but meeting that date now looks doubtful due to opposition in the Senate, and concerns from provincial and municipal governments that they need more time to prepare, the CBC reports.

In the meantime, several provinces have passed or introduced legislation governing the sale of marijuana. In Ontario, MPPs passed the Cannabis Act on Dec. 12, 2017. In addition to regulating the sale of the drug, the law limits usage to private homes, barring it from parks and other public places, the Toronto Star reports.

“We don’t yet know what the impact of legalization will be in condos. Some condominiums are expecting that they’re going to start to have issues with the migration of marijuana smoke and odour complaints from residents. And we have a number of inquiries as to what condominium corporations can do now to address that before the problems arise,” Mackey tells AdvocateDaily.com.

Condos that already have rules in place restricting tobacco and cigar smoke can amend those rules to include a prohibition on marijuana smoke, she says, while those that don’t have rules can pass regulations on where individuals will be able to smoke pot, along with tobacco and cigars.

“Some condominium corporations have prohibited smoking in the common elements, which includes balconies. Others have prohibited smoking within units. In some cases, corporations grandfathered existing smokers, but new individuals buying or moving into the building are told they can’t smoke in their units,” she says.

“Something condominium boards need to consider when they’re implementing any new rule — but especially this one — is will it be enforceable, and if a unit owner challenges the rule, will it be upheld by the courts?” Mackey says. “Whatever the rule is, it needs to be reasonable, and its purpose must be to protect the safety and security of residents. Rules that follow those two requirements should be fine, they should be enforceable.”

Legal counsel should be consulted before condo boards introduce rules that restrict marijuana or cigarette smoking, she says, adding “whenever rules are being implemented that will radically change what is and isn’t permitted, we always recommend that boards also consult with owners and residents. A condominium board’s decision to restrict the ability of residents to smoke inside units and on the common elements is usually contentious."

Medical marijuana, which has been regulated in Canada since 2001, has not created the kinds of disputes envisioned with the introduction of recreational pot, Mackey says.

“With recreational marijuana, the issue is smoke migration. Are people going to be smoking on their balconies? Is it going to be blowing into other people’s units? Is there migration from unit to unit? These are the issues we foresee,” she says.

“But another thing to consider is although recreational marijuana hasn’t been legal here, it certainly goes on in condominiums. So the question is: How much will marijuana use increase as a result of it becoming legal? In some buildings, it may not change. In others, it may. We just don’t know.”

While condominium boards are always attempting to “balance the rights of diverse populations” on a number of issues, Mackey says, the legalization of recreational marijuana will undoubtedly bring challenges from residents — both from those who feel they’re not being allowed to exercise their right to smoke and those who want a smoke-free environment.

“I believe that whether challenges are through mediation and arbitration under the Condominium Act, or potentially through the courts, this is a brand new situation. And whenever something new arises, it inevitably comes with legal challenges and disputes within the community.”

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