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Find 'nuanced' approach to cannabis rules in leases

While landlords and tenants are likely to encounter some “growing pains” with the legalization of cannabis, blanket bans are not the answer, says Toronto landlord/tenant lawyer Caryma Sa’d.

“Legalization acknowledges that using cannabis shouldn’t be a criminal activity, to begin with,” says the founder and principal of SADVOCACY Professional Corporation. “A blanket ban, especially in a city like Toronto where there are many renters, would be counter-productive, and would likely beget more tension and hostility.

“A more nuanced position is the way to go,” she tells AdvocateDaily.com.

Under the new legislation, residents will be allowed to smoke cannabis in their private homes, including apartment or condominium units, and outside in their yards or on balconies, according to the Ontario government’s website. But rules for renters depend on specific lease agreements.

Sa’d says she expects there will be disputes at provincial landlord and tenant tribunals if any unilateral changes in lease agreements are made without the consent of renters.

“Unless something is amended in the legislation allowing unilateral changes to lease agreements, my instinct is it won’t be possible for landlords to impose rules on tenants that prevent them from taking part in a perfectly legal activity,” she says.

If landlords want to impose certain restrictions, the existing agreement must be amended or a brand-new lease must be signed, she says. The tenant can’t be pressured or coerced into signing new contracts, but renters and owners will still need to follow the bylaws of their condo building, she adds.

The rules may not apply equally for all cannabis users, Sa’d says.

“Any unwarranted prohibition or restriction on medical cannabis violates fundamental human rights. Certain protections ought to be afforded to patients. It will be interesting to see whether recreational users will be able to piggyback on legal principles established in caselaw on medicinal cannabis,” she says.

The legalization of marijuana set for Oct. 17, 2018, has some landlords and rental companies scrambling to update lease agreements, with others, including Toronto Community Housing, opting to go smoke-free, including pot, the Toronto Star reports.

Like all Ontario residents, community housing tenants will be allowed to grow up to four marijuana plants, the article says.

Sa’d says if a lease already precludes someone from smoking cigarettes, it’s not that far of a jump to deem smoking cannabis prohibited as well, as already legislated by the B.C. government. But prohibiting the use of cannabis is not always the same as tobacco because of the plant’s medicinal properties, she says.

“After legalization, we may see an uptick in the number of people with medical licences,” she says. “To draw a comparison to cigarettes, it’s not a perfect analogy.”

Any landlords with all-inclusive agreements who are concerned about the additional power or water consumption used to grow marijuana plants may also need to have discussions with their tenants or consider updating agreements, she says. But most renters likely won’t bother growing pot, she adds.

“It’s a finicky plant,” Sa’d says. “For all the therapeutic benefits of gardening, many people lack the time, space, and patience to grow cannabis. Landlords and condo boards are probably over-estimating the number of people who will follow through on home grows. For the most part it will be more convenient to go to a dispensary or order online.”

Still, Sa’d says she expects some litigation at the landlord/tenant board to determine if landlords are within their rights to impose changes. As well, landlords and tenants may encounter lower-level disputes in general as residents become more accustomed to smelling pot smoke from their neighbours.

“As with anything, mutual respect and cooperation between parties goes a long way,” she says. “Some level of conflict is inevitable, but once the initial shock of legalization wears off, things should settle down.”

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