Cannabis in the multi-residential living space
Rights of tenants and landlords still hazy as legalization looms
Tuesday, June 5, 2018
by Erin Ruddy
On October 1st, the new Cannabis Act will officially take effect, and no group of people is more concerned about the set of challenges legalization will likely bring than those managing (and living in) multi-residential communities.
Odour complaints, health concerns, altered behaviour, mould, and increased electricity consumption are just some of the worries lobbyists have tabled in the fight for the right to regulate consumption. Some provinces have moved to ban home cultivation entirely, while others have granted apartment owners the power to enforce their own reasonable limitations.
In late April, the B.C. government introduced new legislation that LandlordBC is calling “a significant win for the industry.” In an amendment to the Residential Tenancy Act, Bill 30 now grants landlords the right to retroactively prohibit both smoking and growing cannabis in all residential units. This means landlords can update current leases to ensure their “smoke-free” designation isn’t just limited to tobacco. Tenancies with agreements that do not address the smoking of tobacco will also be considered cannabis-friendly.
In Ontario, the province’s strict tenancy laws currently make it illegal to modify a rental lease before that lease comes due. As such, landlords will be unable to regulate cannabis consumption in their apartment buildings with existing tenants—only with those who apply for tenancy after legalization takes effect.
Similarly in Alberta, renters living in multifamily dwellings may be restricted from smoking and growing cannabis based on rules established in rental agreements moving forward, but not retroactively.
Landlords in Quebec were among the first to take action against cannabis cultivation, insisting that property owners should be entitled to ban home cultivation from their premises. But the province took the ban one step further, amending legislation so that all residents—homeowners and renters alike—will be prohibited from growing cannabis for personal consumption come July 1st. Under the new plan, Quebec residents may only legally purchase the substance from one of 15 government-run shops, which will be scattered across the province.
On April 19th, Nova Scotia passed its recreational cannabis legislation, the Cannabis Control Act, granting landlords the authority to amend existing leases to put reasonable rules in place about recreational cannabis smoking and cultivation. Landlords must provide tenants four months’ written notice of a change before April 30, 2019. When the landlord provides notice, the tenant has one month to consider the change and either agree or terminate the lease. Tenants are required to give the landlord three months’ written notice to terminate using a new form from Service Nova Scotia.
B.C. residents wary of second-hand smoke: survey
Landlords aren’t the only ones worried about what cannabis legalization may bring. According to a new survey of B.C. multi-unit housing residents commissioned by the Clean Air Coalition of B.C., the majority of residents said they would support government measures to increase B.C.’s meagre stock of 100% smoke-free multi-unit housing.
While British Columbians are protected from exposure to second-hand smoke in virtually all workplaces and public places, increasingly people want protection from second-hand smoke where they live—specifically, in apartments, condominiums and other multi-unit housing complexes. According to the Clean Air Coalition, half of multi-unit housing residents surveyed expressed that they’ve experienced second-hand smoke exposure, and the large majority (86%) said they considered it harmful.
“We’re hopeful these survey results prompt new regulations designed to increase B.C. smoke-free multi-unit housing options and protect people from second-hand smoke infiltrating their unit from neighbouring smokers, particularly those with health concerns or families with young children,” said Jack Boomer, Director, Clean Air Coalition of BC.
Coalition partners (the BC Lung Association, Heart and Stroke Foundation and Canadian Cancer Society) applaud government efforts to protect British Columbians from the harms of second-hand smoke – including recent news that existing laws will be strengthened to include protection from second-hand marijuana smoke. However, smoke-free multi-unit housing options remain scarce.
“Recreational marijuana smoking is about to become legal, and B.C. is experiencing the highest level of new multi-unit home and rental building construction in years. I don’t think second-hand smoke problems are about to go away,” Boomer said. “As it is, today close to half of B.C.’s population live in physically connected households.”
David Hutniak, CEO of LandlordBC, agrees. “Second-hand smoke grievances are a key source of tenant complaints and will only intensify once recreational marijuana smoking becomes legal. For landlords that’s a problem. Under current regulations, smoking complaints are not easy to resolve.”
To implement a smoke-free policy in an existing rental building, all tenants must be ‘grandfathered’ (allowed to maintain their smoking status) and landlords must ‘phase-in’ the no-smoking policy as they vacate the premises and new tenancies begin.
“Given low vacancy rates, under current rules it can take years to address problems and convert buildings to smoke-free status,” Hutniak continued.
“British Columbians are short of options. For those living in social housing and unable to pay market rent, many simply cannot escape the smoke, even when their health is being severely compromised,” said Boomer. “Even for those who can afford to move, smoke-free multi-unit housing options in B.C. are scarce.”
According to Boomer, the one area where progress is slowly being made is within condominium corporations. “Stratas are less constrained than managers of rental housing because under the Strata Property Act, if the strata council can get the votes, they can legally ban smoking within individual units and on balconies without ‘grandfathering’ existing owners. However, strata corporations who are smoke-free today, may wish to revisit and strengthen their policies to address the legalization of recreational marijuana smoking, as well as other forms of smoking including vaping which are becoming increasingly popular.”
Highlights of the May 2018 survey:
• Over 8 in 10 think new residents should have the right to know which units are designated as smoking units and whether smoking was permitted in the previous tenancy.
• 7 in 10 support the idea of landlords being able to issue a six-month written notice instead of grandfathering existing tenants so more BC apartments can be converted to smoke-free status quicker.
• 7 in 10 support the provincial government making all new market rate and social housing complexes 100% smoke-free to address the extreme shortage of smoke-free multi-unit housing in BC.
• 7 in 10 support the idea of new BC condos having a no-smoking by-law by default that applies to all units, including balconies.