Dear Herb: If a condominium passes a rule banning the growing of marijuana for medical and recreational purposes prior to legalization, would there be issues with this once cannabis becomes legal? — Condo Dweller
Dear Condo Dweller: The Cannabis Act takes effect Oct. 17 and will legalize the cultivation, by an adult, of up to four cannabis plants per home for recreational purposes (as long as the cannabis being grown was legally obtained). Nothing in that federal law directly speaks to the ability of condo boards to allow or disallow cannabis cultivation.
But condominium governance is a matter of provincial and territorial law in Canada; therefore, the specific answer to your question depends on where you live, and what kinds of powers are granted to condo boards by your province's condominium law.
Generally speaking, the fact that the federal law is legalizing home cannabis cultivation in a limited form will hamper a condo board's ability to ban cannabis cultivation on the basis that it's against the law. One Ontario condo law firm has even recommended that condo boards in that province could pre-empt the law change by passing a rule before recreational cannabis use becomes legal.
"If the rule comes into effect before recreational cannabis use becomes legal, then there would be no requirement to grandfather any existing residents, other than those who use cannabis for legitimate medicinal purposes," suggested the legal minds at Fine & Deo.
Condo corporations could also create rules banning cannabis cultivation on the basis that it would void the building's insurance coverage, writes lawyer David Cumming of McLeod Law in Calgary.
"It is common language in condominium insurance policies that coverage is void if you have a grow operation, and there is no reason to believe this will change with the passing of the new law," he said.Advertisement
That brings us to the issue of medical cannabis cultivation in a condominium, which I think will be harder for condo corporations to ban outright. If a condo dweller is licensed by the government to grow their own cannabis for medical purposes, I expect they would be able to challenge any condo board ban on home cultivation on the grounds that it interferes with their human rights.
For what it's worth, I've personally seen a legal medical cannabis garden in a condo. The owner of the unit grows his medicine with the full approval and co-operation of his condo board, and he took care to equip his grow room with appropriate ventilation to make sure any smelly, moist air is vented directly outside the building. In his case, I think being transparent with his condo board may have helped him get their blessing.
So if you're a medical cannabis user who grows her own, and you're trying to get your condo board to accommodate your needs, know that it can be done!
If you're hoping to grow your own for recreational purposes, though, I suspect your condo board can find more than one way to prevent that while remaining well within relevant provincial condominium law. I recommend you consult a lawyer who specializes in condominium law in your jurisdiction.
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