Landlords and condo boards in Canada might oppose, but tenants have more rights than they realize
Homestead Land Holdings, one of Ontario’s principal landlords, recently caused a nation-wide stir when they announced that they would terminate the leases of tenants found smoking or cultivating cannabis.
When contacted, Homestead’s chief operating officer Scott Topping, said, “We will treat this as we currently treat tobacco smoke, and it will be permitted for designated smoking buildings providing that it does not interfere with the reasonable enjoyment of other residents within the building.”
Property damage, canceled insurance and, of course, the characterful smell, no matter what the reason, landlords across the country have a bone to pick with the government’s choice to allow Canadians to legally grow up to four cannabis plants in their homes.
David Hutniak, chair of the Canadian Federation of Apartment Associations and CEO of LandlordBC, says the reproach comes from a place of concern. “We have a requirement to provide ‘quiet enjoyment’ for all tenants.” This means protecting tenants from unreasonable disturbances, such as “unpleasant” odours.
Quiet or not, the regulations leave a lot of room for Canadians in most provinces to grow at home, wherever home may be.
Trina Fraser, co-managing partner at Brazeau Seller Law and a leading attorney in cannabis law, says tenants are under no obligation to adhere to their landlord’s preferences. “You don’t have to tell your landlord you’re growing medicinal cannabis, or ask for consent,” she says, appending that measures for restricting a tenant’s ability to grow at home are essentially nonexistent.
Medical is the operative word when it comes to rented units or condos, though Fraser admits that in most cases, the low enforceability means landlords won’t often (if ever) have the opportunity to distinguish a medicinal cultivation unit from a recreational one. When engaging with property managers, be decisive about what information you share. “If it’s in a non-medical context, it’s not something I’d offer up voluntarily,” she says, adding that she is concerned some property managers are overstepping their boundaries. “We’re seeing absolute bans and seeing them imposed unilaterally, in existing leases, without the tenant’s consent.”
Many revised contracts specify that any cultivation is grounds for eviction, which Fraser says could be a cause for legal intervention, further asserting that removal or any kind of harassment on the owner’s part could mean a talk with the Human Rights Commission. Initiating a legal investigation in the case of eviction is surprisingly straightforward, Fraser notes: If you’ve faced discrimination, she advises speaking with your property manager/board directly or filing a complaint with the commission.
Condo owners might not have as many liberties with their bud, however. The fear of mold, pest infestations and concern about odour has led many condo boards to place strict “no cannabis” rules in agreements. Section 58 of the Condominium Act says amendments can be made to “prevent unreasonable interference with the use and enjoyment of the units”. There are processes in place that could overrule decisions if backlash from unit owners is strong enough, but Fraser admits rallying up that level of support would be a significant undertaking. In any case, she says these rules can only be applied to recreational consumers, as the medicinal use is protected under the Human Rights Code.
“You can smoke in your unit, as long as you’re not risking a fire,” says Geordie Dent, executive director, Federation of Metro Tenants’ Associations. He doesn’t expect the cultivation in rented units and condos to look much different from growing in homes. “Rental and condo markets can do anything the housing market can do, with the exception of damage to the units.”
While landlords can’t retroactively make amendments to contracts, they will likely include restrictions in new leases.
Understanding a manager’s need to uphold the well-being of other tenants, Fraser recommends talking to your landlord about cultivation if transparency is important. “If you can engage them on how you do it responsibly; controlling humidity, odours and hazards, that’s a good dialogue to start.” Ultimately, she suggests that the current legislature leaves the ball in the tenant’s court: You’re not legally required to say anything.
Conditions regarding home cultivation vary from province to province. Explore Fraser’s outline of cannabis regulations to see how it may be regulated in your region.