Recreational Cannabis in Condominiums

By Slonee Malhotra

New legislation came into effect late 2018 to legalize the possession, use and production of cannabis for recreational purposes in private residences. The Cannabis Act permits individuals, 19 years and older, to use cannabis and to grow up to four plants per residence for recreational use. This recreational use is limited, however, within condominiums.

Under The Smoke-Free Ontario Act, recreational smoking is prohibited in indoor common areas of condominium buildings. This means that unit occupants are prohibited from smoking in areas such as elevators, hallways, laundry facilities, lobbies, fitness rooms, parking garages and entertainment rooms.

Under the Condominium Act, the Condominium Corporation, or the Declarant of a new construction project, is further permitted to manage the use and production of cannabis within the condominium. Condominium boards are permitted to create rules and amend the Declaration to:

•  “Promote the safety, security or welfare of the owners/occupants and the property and the assets”; or
• “Prevent unreasonable interference with the use and enjoyment of the units, common elements and assets”.

Following the introduction of the Cannabis Act, condominium boards have raised questions regarding whether the smell of cannabis constitutes a nuisance to individual unit owners. Such inquiries have also prompted a review of smoke penetration within individual dwelling units. As a result, there has been a noticeably sharp increase in the implementation of rules to “prohibit smoking of all kinds” in condominium indoor common areas as well as within individual dwelling units and outdoor exclusive use areas.

Condominium boards should note that when these prohibitions are introduced, boards have a duty to ensure enforcement. To this end, if a condo corporation desires to implement such a prohibition, it should consider taking the following steps:

• In the case of new construction, additional provisions should be included in the declaration, bylaws and rules to ensure enforcement of the prohibition via the granting of a right to enter dwelling units with notice or without notice in the event of an emergency.
• In the case of an existing development, additional rules may be introduced via an amendment to declaration or through a notice addressed to all unit owners. Note, however, that if a new rule is introduced, the condominium board must provide appropriate notice and provide unit owners with the right to requisition a meeting to respond to the proposed rule.

Contact one of our condominium development lawyers today for more information on incorporating cannabis issues in your condominium rules.