Condominium living offers many advantages but also offers the challenges of living in close proximity to other people and being restricted in what you can do with your residence. Many condominium owners are familiar with restrictions placed on them by their condominiums bylaws and/or rules. Condominiums may restrict things like cigarette smoking, pets, or balcony usage. With the Federal Government’s intent to legalize marijuana usage in July 2018, some condominium boards and residents have expressed concerns over how this may affect their residences. The main concerns we have seen from condominium boards regarding the looming legalization of marijuana are:
- Concerns about the smell of marijuana smoke and smells of budding plants; and
- Concerns about risk of damage from residents growing plants in their units.
Some questions Chapman Riebeek LLP has received are: what can we do about this? When should we be doing it? We have prepared this article as a general information piece. We understand that bylaws, rules and regulations vary between Condominium Boards and if your Board is tackling these questions, we can assist you navigate the issues. What can we do about it?
- Review Bylaws
Current condominium bylaws should be reviewed to see whether there are gaps in general and gaps specifically regarding marijuana usage. Many condominiums have bylaws prohibiting the use of illegal substances or doing illegal activity on common property or in units, but once marijuana is legalized it will no longer fall under those bylaws. Damage from growing may be covered under current bylaws but smoking/usage might not be.
- Making focused rules
A Condominium Board can create rules or regulations regarding the usage of and growing of marijuana within the Condominium. An advantage of a rule is they can be created and changed quicker and easier than a bylaw. Rules, depending on the condominium, can be created by the Board at a regular Board meeting. A disadvantage of rules is that they can be changed quicker and easier so a Board turnover could undo rules relatively easily.
- Amending Bylaws
For Boards looking for a more permanent solution, they may want to consider amending their condominium’s bylaws. Creating, amending, or removing bylaws requires a special resolution signed by 75% of the unit factors entitled to vote. This makes them harder to do as you need a much larger portion of owners in favour of the bylaw change. An advantage of this is that bylaws are subsequently harder to change, although it is possible, and may offer a more enduring solution to a problem/potential problem. When changing bylaws or implementing rules, Boards also need to be wary of potential human rights issues regarding individuals who require marijuana to treat medical issues. This can be addressed within a new bylaw but needs to be done carefully and is a risk Boards need to be aware of. Boards should also look into whether their bylaws properly allow them to impose monetary sanctions (i.e. fines) that may be necessary to actually enforce breaches of bylaws, such as marijuana smoking restrictions, that cause a nuisance or irritant to other owners but may not cause actual physical damage that can be compensated for financially. Bylaws are more effective if there is actually something behind them to give them teeth. When should we be doing it? Well there is nothing stopping Boards from taking a wait and see approach to this issue, there may be some advantages to implementing restrictions before legalization actually occurs this summer. Depending on the size of the condominium and the relationships between residents and between the residents and the Board, a Board may find it easier to take away what people already do not have. Owners may be more reluctant to give up privileges relating to marijuana once it becomes legalized and they have enjoyed those privileges. Boards can impose rules fairly easily as discussed above, but may find bylaw revisions/additions/alterations more difficult to get passed after the legalization. How can Chapman Riebeek LLP help you? The legalization of marijuana will impact a wide range of areas, including condominium living. Bylaws, if done properly, can be a useful tool to tackling this and other issues in a condominium situation. If your condominium is concerned about this issue specifically or are interested in a general bylaw review, please contact Paula Maitland, Associate, and we will be happy to assist you as corporate counsel or on an ad hoc basis.