Now that the use of marijuana is legal in Canada, residential landlords should be thinking about how this will affect their rental properties.
Smoking marijuana
Currently, the Residential Tenancies Act (the “Act”) does not include provisions about smoking substances of any kind in a rental unit. The Smoke-Free Ontario Act, 1994 does, however, ban smoking in common areas, in apartment buildings or condominiums. This includes elevators, stairwells, hallways, parking garages, laundry facilities, lobbies, exercise areas and party or entertainment rooms. Additionally, landlords do have the right to ban tobacco smoking if it is stipulated in their lease and the tenant signs same. Otherwise, a tenant may smoke in their own unit.
According to the Ontario Government, the same rules will likely apply to marijuana; therefore, post-legalization, landlords should be able to prohibit smoking marijuana in rental units, provided that wording is in their lease. Presently, Ontario’s tenancy laws prohibit changing a lease during a tenancy, landlords who have not already prohibited smoking in a lease, will have to wait for a new tenant to include that provision in the lease, or discuss possible alternatives with a lawyer.
One exception to the smoking prohibition in a lease may be for a tenant who relies on the Ontario Human Rights Code (“the Code”) to justify a breach. This requires that the tenant be able to claim that he or she uses marijuana for medicinal purposes. Even in these circumstances and for these tenants, comprises may be made, for example, it may be an option that marijuana could be consumed orally.
Growing marijuana
Currently, the Access to Cannabis for Medical Purposes Regulations apply to permit limited cannabis growing by an authorized person (i.e. one with a prescription). However, the right to grow is not absolute, nor is it likely to be so in the future.
Under current regulations, an eligible grower must comply with applicable provincial and municipal laws relative to health and safety, including but not limited to applicable building, fire and electrical codes. Post-legalization, it is expected similar rules will apply, but it is unlikely that those rules will operate without regard to the legal interests of rental property owners and other occupants of rented residential premises.
In Ontario, a landlord may prohibit cannabis growing in apartment units in a lease, subject to the requirements of the Code. The fact that an individual holds a prescription for medical cannabis does not mean that they are entitled to grow plants in their rental unit, particularly if they have agreed in their lease not to do so. If the person cultivates cannabis and relies on the Code and existing regulations as grounds to violate the lease, a landlord can challenge the position by invoking regulatory policies applicable to the accommodation of individuals with disabilities. For example, people who hold prescriptions can purchase the product, grow plants off site, have someone else grow plants on their behalf, or grow them in a designated area.
A person’s interest in growing cannabis must be balanced with the interest of the landlord to ensure that the health and safety of other residents and the physical integrity of the property are not put at risk by the activity of cannabis growth in a rental unit. Excess humidity (mold), excessive electricity consumption (if hydro is “included in the rent”), and alterations to the electrical system (increasing the risk of fire) are legitimate concerns for landlords and other tenants. In addition, there are security issues if cannabis production in a unit is known to third parties and finally, insurers may refuse to provide coverage for “grow-ops,” regardless of their size.
The legalization of recreational marijuana raises a number of questions and issues for landlords and it will be interesting to see how things play out over the upcoming months.
This blog post was written by Diana Tebby, a member of the Real Estate and Wills and Estates teams. She can be reached at 613-369-0384 or at diana.tebby@mannlawyers.com.
