WE’VE KNOWN FOR A WHILE THAT THIS DAY WAS COMING. ALTHOUGH MARIJUANA IS NOW LEGALIZED IN BC, THIS DOES NOT CONSTITUTE A FREE-FOR-ALL IN TERMS OF GROWING, SELLING, OR CONSUMPTION. HOMEOWNERS, LANDLORDS, AND TENANTS ALL NEED TO BE INFORMED AND EDUCATED ON THE DO’S AND DON’TS OF OUR NEW LAWS.
In British Columbia, Bill 30, the Cannabis Control and Licensing Act (CCLA), governs possession, use, and cultivation of recreational cannabis. The CCLA permits individuals aged 19 or older to purchase and consume cannabis, possess up to 30 grams in public, and grow up to 4 plants at home provided the plants are not visible from public spaces and are not cultivated in homes used as day-cares. The CCLA provides guidance for landlords and strata councils on their rights and obligations. British Columbia has also passed Bill 31, the Cannabis Distribution Act (CDA), which guides entities looking to establish a physical retail cannabis presence and presides over the distribution of recreational cannabis.
In British Columba, the CCLA amends the province’s Residential Tenancy Act such that if a residential tenancy agreement entered into before October 17 (i) includes a term that prohibits or limits smoking tobacco; and (ii) does not include a term that expressly permits smoking cannabis, then the agreement will be deemed to include a term that prohibits or limits smoking cannabis in the same manner smoking tobacco is prohibited or limited. Further, residential tenancy agreements entered into before October 17 are deemed to prohibit growing cannabis plants, unless (i) the tenant is growing federally authorized medical cannabis; or (ii) growing these plants is not contrary to the terms of the tenancy agreement. Residential tenancy agreements entered into on or after October 17 must expressly state whether there are any prohibitions or limitations on growing or smoking cannabis. In the absence of any such prohibitions or limitations, landlords and tenants are free to negotiate terms regarding growing and smoking cannabis.
In British Columbia, the CCLA does not make amendments to the Strata Property Act nor has the provincial government imposed any specific cannabis related restrictions on strata councils. This implies that strata councils and condo boards in BC are free to enact bylaws and rules that restrict smoking or growing cannabis, although as noted below, this may raise some issues with respect to cannabis used for medical purposes.
Home insurers may have clauses in their policies stating that they will not insure homes used for the production of cannabis. In a recent court decision in Saskatchewan, a judge held that such a clause disentitled a landlord from an insurance payout for damages caused by their residential tenant’s cannabis grow-op, even though the landlord had not been aware of the existence of the grow-up at the time, and had not given the tenant permission. While this case was decided in Saskatchewan, similar clauses may be found in insurance policies across Canada.
MEDICAL CANNABIS RESTRICTIONS IN LEASES OR BYLAWS
Medical cannabis is currently governed by the Access to Cannabis for Medical Purposes Regulations(ACMPR). On October 17, this legislation will be repealed, and the Cannabis Regulations, which accompany Bill C-45, will govern medical cannabis.
If a landlord, strata council, or condo board attempt to restrict an individual’s use of medical cannabis they may be violating Human Rights Codes or Canada’s Charter of Rights and Freedoms. However, there may be existing obligations to other tenants, including provision for the quiet use and enjoyment of their leased property, and the use of medical cannabis may pose a nuisance to these others. These obligations and the rights of an individual using (or growing) medical cannabis may be irreconcilable. Recent authority suggests that in some situations a no-smoking provision in a lease or bylaw may continue to apply if medical cannabis can be ingested in other ways.
If you are concerned about how these new laws may affect you and your home, contact us today.
Information and statistics obtained from Lawson Lundell Real Estate Law. To read the full article, click here