In an unprecedented decision rendered by the administrative judge Serge Adam, the Régie du logement accepted the landlord's request for termination of the lease, which was based on the tenant's recurring marijuana use. There was no stipulations in the lease that prohibited the smoking of marijuana.
At the hearing, the plaintiff and his wife, two landlords over the age of 70, testified to the effects of the tenant's consumption. They complained about the abundant smoke and smell that causes them irritation to the eyes and the respiratory tract. The applicant and his spouse felt as if they were suffocating and were so indisposed that they had trouble sleeping. In addition, the landlords complained about the tenant's cannabis cultivation, which increased electricity consumption.
As for the tenant, he first admitted smoking medical marijuana. His health is precarious, while he suffers from various ailments. His consumption makes him cough, which could explain the exasperation of the landlords. He argued that his consumption is protected by the right to privacy. He confirmed that he obtained an authorization to produce medical cannabis and admited to owning two plants, but denied having an extensive plantation in the dwelling, as claimed by the landlords.
The landlord's claim raises two issues identified by the judge, firstly does the tenant use the dwelling with care and diligence and, secondly, should the regular use of cannabis result in the termination of the lease. In this case, he recalled, the onus is on the landlord to prove the tenant's breach, and does this breach causes him serious prejudice to obtain a termination.
The administrative judge considered that there was insufficient evidence to conclude that the premises were carelessly used. It was not demonstrated that growing two plants could have serious consequences for the unit or the building in general. The court, however, served a warning: an extensive culture would have changed the situation.
Pursuing his analysis, the administrative judge contradicted the tenant's claim to the right to privacy; it is a way of life, unprotected, as decided by the Supreme Court.
After an extensive review, the judge identified the legitimate objective of protecting one’s-self from second-hand smoke. The overriding evidence, he wrote, indicated that the smoke produced by marijuana use is an important source of disturbance, nuisance and inconvenience. As a result, the lease was terminated. Administrative Judge Adam did not consider it appropriate to substitute termination with a court order since the tenant was prescribed cannabis by a physician.
CORPIQ welcomes this decision and notes that it was rendered 3 months after the hearing, while the time between filing and the hearing was 5 weeks. That being said, for greater certainty, homeowners wishing to avoid such problems would benefit from specifically providing in their leases the restrictions imposed on tenants in regards to the production, consumption and processing of cannabis.