Legal Cannabis and Alberta Condominiums
Considerations for Creating Enforceable Bylaw Amendments
The federal government recently passed Bill C-45, an act that legalized personal consumption and cultivation of cannabis in small amounts. This new law, referred to as the Cannabis Act, came into effect on October 17, 2018. In combination with newly introduced Alberta legislation, adults (over 18 years old) are permitted to possess up to 30 grams of cannabis, consume cannabis in private and designated public areas, and grow up to four marijuana plants within the privacy of their own homes.
While generally hailed as a positive measure, owners and occupants of multi-residential housing premises such as condominiums may encounter some undesirable side effects. For example, there are numerous health hazards associated with passive or second-hand inhalation of cannabis smoke, not to mention the increased risk of fire. The odour of cannabis smoke or vapour may be considered a nuisance in and of itself. Growing marijuana in apartment-style homes and condominiums increase common energy and water consumption, may lead to higher common insurance premiums, and the potential for mould growth. Issues of legality aside, marijuana use and cultivation may also bring an increases element of criminal activity occurring in and around that location.
There is nothing in the new legislation (federal or provincial) that limits contractual restrictions on cannabis consumption and cultivation, such as by way of condominium bylaws. Accordingly, individual condominium corporations are free to implement such rules as they see fit. Condominiums in Alberta can only change their bylaws by passing what is called a “special resolution”. It means that at least seventy-five (75%) percent of all unit owners entitled to vote, representing at least seventy-five (75%) percent of the total unit factors for the condominium, must be in favour of an amendment to the bylaws, or it will not pass. Achieving this threshold is, in practice however, exceedingly difficult for many condominium corporations.
Some condominiums may already have bylaws in place that prohibit “smoking” anywhere on the common property, and some even extend that restriction to individually-owned units. So as a first step, the corporation’s bylaws will need to be examined to determine the extent of such existing restrictions, if any. For those condominiums wishing to impose an outright ban on marijuana smoking and cultivation anywhere on the property, the bylaw amendment must be carefully drafted to cover various contingencies, including vaping, medical need and disability. The Cannabis Act specifically distinguishes vaping as an act which “simulates” the act of smoking. To truly be effective, any bylaw amendment should address this difference.
Bylaws should also afford the Board of Directors some discretion to allow cannabis consumption in order to accommodate legitimate medical needs of unit owners, tenants and other occupants. Otherwise, the corporation could find itself on the losing side of a potentially costly human rights discrimination complaint and lawsuit. Outright bans on cultivation are more likely to be upheld, whereas complete prohibitions on consumption under any circumstances may be viewed as unreasonable.
On the other hand, a complete “smoking” ban (with perhaps allowance for vaping), especially if it covers all substances, and not just cannabis, could more easily withstand a challenge. Fortunately, there are numerous alternative methods of cannabis consumption that are arguably far safer and healthier than smoking, such as vaping and use of edibles. Vaping may be a viable alternative to smoking, provided the vape odour does not create a nuisance for other occupants. In that case, the bylaws should provide that the Board retains the right to revoke permission on that basis. It is expected that marijuana edibles will be legally available for sale and consumption in Canada by no later than October 17, 2019.
Finally, once appropriate bylaws have been voted on and approved by the owners, and registered with the Land Titles Office, they can be enforced through a variety of means, including fines (if provided for therein), non-monetary sanctions (revocation of common property privileges, for example), and ultimately, legal action. In most cases, court action will take the form of a claim for what is known in Alberta as “improper conduct”, which must be brought in the Court of Queen’s Bench. If successful, the Court can make virtually any order that is appropriate in the circumstances to remedy a breach of the bylaws. The onus is on the condominium corporation to demonstrate that the bylaws were validly enacted and clear in the restrictions they impose.
With legalization of cannabis still in its infancy, condominium corporations must be proactive to address potential deficiencies in their bylaws. Outlined below are various discussion topics that should be considered before considering a cannabis bylaw:
- Is there currently a bylaw that addresses smoking cigarettes, cigars, etc.?
- What style is the condominium corporation? Apartment? Townhouse? Bareland? Residential? Commercial? Mixed use?
- What is the average age the occupants?
- Will occupants be permitted to smoke in their units, on their exclusive use balconies/patios, or anywhere else on common property? How will “nuisance” smoke be addressed if the condominium corporation adopts a smoking prohibition in units/exclusive use areas?
- How will the bylaws treat medical marijuana?
- Should marijuana cultivation be prohibited?
- Will the smoking of marijuana or the growing of marijuana plants affect the condominium corporation’s insurance policy?
- How will the condominium corporation’s insurance be impacted, if at all?
For more information, a consultation, or to obtain an opinion on the effectiveness of your condo bylaws with respect to cannabis legalization and a quote for incorporating the necessary amendments, please contact Erin Berney.