Amending Condominium Bylaws For Cannabis Legalization

October 17^th, 2018 marks the Government of Canada legalization of recreational cannabis use across the country. What does this mean for the condominium industry? As cannabis use will likely be on the rise, condominium boards (“Condo Boards”) should anticipate an increase in complaints by residents due to the smoke and odour associated with marijuana consumption. Accordingly, Condo Boards should turn their minds to amending their bylaws to address recreational cannabis use in order to avoid future issues. Condominium bylaw cannabis provisions aim to prevent issues before they st

art. However, concerns have been raised by condominium corporations (“Condo Corporations”) about whether adopting bylaws that prohibit residents from smoking or growing marijuana in their units  contravene the Alberta Human Rights Act.

The Condominium Bylaw lawyers at Kahane Law Office in Calgary have researched many of the changes needed for  condominium bylaw cannabis provisions. Keep reading to find out more about the consequences of cannabis legalization and what Condo Corporations can do to address them.

What You Need To Know About The Legalization Of Cannabis

The possession and trafficking of marijuana is currently illegal under the Controlled Drugs and Substances Act. However, on October 17^th, 2018, Bill C-45 an Act respecting cannabis and to amend the Controlled Drugs and Substances Act (the “Cannabis Act”) will become law. The Cannabis Act will allow individuals over 18 to:

• possess up to 30 grams of dried cannabis;
• grow up to four cannabis plants per household; and
• purchase and use cannabis.

What Are the Concerns Of Condominium Corporations?

Condo Corporations have raised various concerns with respect to the legalization of recreational marijuana. Firstly, much like cigarette smoke, the smell of smoking cannabis may interfere with the use and enjoyment of the property by other owners. Secondly, cultivating cannabis plants may increase the risk of mold growth, property damage and electricity and water use. Lastly, when budding, cannabis plants tend to release a pungent smell which may become a nuisance to neighbours. Without condominium bylaw cannabis provisions, they Condo Corporation and Condo Board cannot protect the condominium.

How Condominium Corporations Can Deter Cannabis Smoking By Residents

For Condo Corporations that have adopted bylaws prohibiting smoking in the units and on common property, the bylaws applies to prohibit smoking cannabis in the same way that they apply to smoking tobacco. Without condominium bylaw cannabis provisions, they cannot. Condo Corporations that wish to prohibit smoking marijuana and allow for smoking tobacco or vice versa should have their bylaws amended accordingly.

How Condominium Corporations Prevent Residents Growing Marijuana

Condo Corporations should amend their bylaws to prevent residents from growing cannabis plants in their unit and anywhere on the com

mon property. This includes balconies, patios, hallways, elevators and enclosed parking spaces. However, even if a Condo Corporation’s bylaws do not specifically address this issue, most bylaws state that residents cannot to do anything that would void or increase the  Condo Corporation’s insurance premiums. Generally, condominium insurance policies state that coverage is void if any resident has a grow operation. Therefore, Condo Corporations may rely on this bylaw to ban the growth of marijuana plants anywhere in the building. If bylaws do not address either issue, adding condominium bylaw cannabis provisions allows the condominium to protect the building.

In Alberta, the Tobacco and Smoking Reduction Act, prohibitions smoking in indoor common areas and public spaces of condos. This includes hallways, elevators and common recreation areas. There are also five meter smoke-free zones around all doorways, air intake areas and public windows that open. Regardless of what Condo Corporations’ bylaws state, such areas will remain smoke-free in compliance with legislation.

Does Preventing Owners From Smoking Medical Marijuana Offend The Alberta’s Human Rights Act?

Many Albertan Condo Corporations are concerned that, in adding condominium bylaw cannabis provisions to prevent smoking marijuana, the bylaws in question could be challenged as a human rights violation contrary to Alberta’s Human Rights Act (“AHR Act”). The AHR Act prohibits discrimination against mental and physical disabilities. At common law, substance addiction constitutes a disability. In British Columbia, a woman brought a complaint to the B.C. Human Rights Tribunal (the “Tribunal”). She alleged that a Corporation’s bylaw prohibiting smoking in the units discriminated against her as a smoking addict. The Tribunal’s decision, upheld by the Court, found that there was no discrimination as the individual could have smoked outdoors. Similarly, the reasoning in that case could apply to smoking medical marijuana.

Additionally, people may consume marijuana in various forms that result in less smoke and odour. Two examples include consuming marijuana in edible form or through a vape that creates less smoke. Thus, if Corporations adopt bylaws prohibiting smoking marijuana, a human rights tribunal is unlikely to conclude discrimination exists if the resident can consume marijuana via other alternatives.

Does Preventing Owners From Growing Marijuana Offend The Alberta’s Human Rights Act?

It is unlikely that a human rights tribunal or the Courts would find that a Condo Corporation’s bylaw that prevents the growth of cannabis plants to be a violation of the AHR Act. The condo bylaws do not prevent the ability to access cannabis. Obtaining marijuana from an authorized dispensary allows access for complainant residents.

Consult Owners Before Adding Condominium Bylaw Cannabis Provisions

While Condo Boards should adopt bylaws that safeguard the safety, security and welfare of condominium owners, bylaws should be reasonable. As bylaws ultimately are approved by owners, it is prudent for Condo Boards to poll or consult with owners prior to devising and circulating the proposed bylaw. Failure to do so may result in discontent that jeopardizes the sucessful amending of the Condo Corporation’s bylaws.

Cannabis Condo Bylaw Uncertainty

The new cannabis legalization and and related changes to Condominium bylaws, may ultimately be challenged. Under the common law, laws, contracts, bylaws, etc, challenged in court, set better understandings of what is and is not allowed. The courts may strike down, narrow or uphold provisions. Until the court sets a precedent, some legal uncertainty exists with various interpretations. If in doubt, consult a lawyer to look at the law and previous judgments to get an informed legal opinion.

Get Help Drafting Cannabis Condo Bylaws

With the legalization of recreational marijuana, Condo Corporations should examine and, if necessary, amend their bylaws. This ensures that the bylaws accurately reflect the desires of the condominium community. At Kahane Law Office, condo bylaw lawyers assist you with each step of the process. We assist in polling condominium owners, drafting condo corporation’s bylaws and/or amending existing bylaws in light of legislative changes. We can be reached at 403-225-8810 or toll-free at 1-877-225-8817, or email us directly here.