As of October 17, 2018, Canadians will be able to legally smoke marijuana recreationally, a major change to Canadian legislation. Below are some steps rental building owners can take to avoid unwanted effects of the law.
Under Quebec’s Cannabis Regulation Act, rental building owners will have 90 days (until January 15, 2019) to unilaterally prohibit tenants from smoking cannabis in their units. Landlords must send a lease modification notice to their tenants, but only starting on October 17, 2018. Section 12 of the Act already stipulates that smoking cannabis in “common areas of residential buildings comprising two or more dwellings” will be prohibited.
Tenants cannot refuse the lease modification unless they have authorization to smoke cannabis for medical reasons. If that is the case, the tenant must notify the owner of his or her refusal on these grounds within 30 days of receiving the modification notice. If the owner does not believe the tenant has such authorization, he or she can file an application with the Régie du logement, which will judge whether the tenant’s refusal for medical reasons is justified or not.
“Even if the tenant has a medical marijuana prescription, if smoking it causes problems, the landlord can request that the Régie du logement terminate the lease. A tenant in Matane, who was authorized to smoke cannabis for medical reasons, had his lease terminated by court ruling because the second-hand smoke was affecting the health of the owners living in the unit below,” says Kevin Buche, CORPIQ’s Director of Operations.
Landlords will be able to add a clause to their lease prohibiting cannabis smoking as soon as the federal Cannabis Act comes into effect on October 17, 2018. Before then, smoking cannabis, buying it, having it in one’s possession or growing it for any reason other than medical remains illegal under the Criminal Code. A lease modification notice form will be available in the Tools section of the CORPIQ website (www.corpiq.com) in early October. A draft version was unveiled in Proprio+ in July, to help owners prepare. The version released in October will be modified and improved.
The provision allowing landlords to unilaterally amend the lease conditions to prohibit cannabis consumption is found in Section 107 of Quebec’s Cannabis Regulation Act. The Act does not specify, but the prohibition could apply to the unit as well as its balcony and the building’s yard, as case law has recognized. This new right resulted from CORPIQ’s involvement in a hearing before the parliamentary committee. Its aim was to help landlords avoid complaints from other tenants inconvenienced by the odour and second-hand smoke.
CORPIQ also proposed to Quebec’s public health minister, Lucie Charlebois, that a sub-amendment be made to Bill C-45, requiring tenants to provide, in due form, proof of a medical marijuana prescription with their notice of refusal of the lease modification. The minister refused, stating that tenants who truly need therapeutic cannabis have the right to confidentiality. CORPIQ considers this a weak argument because the tenant will be required to present proof in any case when the matter goes before the Régie. However, requiring proof of a medical prescription along with the notice refusal would have helped expose recreational cannabis users right away, without needing to involve the Régie.
No to cannabis cultivation at home
While the federal Cannabis Act will allow Canadians to grow four cannabis plants per household (not per person), Quebec’s Cannabis Regulation Act, adopted on June 12, 2018, prohibits all cannabis cultivation at home for personal use in Quebec.
According to lawyer Hugo Beaulieu, of the Joli-Cœur Lacasse law firm, the federal and provincial laws could “cohabitate” for a time. “But until the Quebec law is contested, it will be presumed valid. It will therefore be illegal to grow cannabis at home in Quebec,” he says.
The Trudeau government reiterated this spring that it will not allow the provinces to prohibit at-home cannabis cultivation, as Quebec and Manitoba plan to do. The Quebec government indicated that it will not go to court to confirm the validity of its law; it will be up to Quebec’s citizens to contest it. Beaulieu believes that the process could take years. “I would be very surprised if the legal system deemed a tenant’s right to grow cannabis in his or her apartment an emergency. In the meantime, Quebec’s law will apply, and in-home cannabis cultivation will remain illegal.”
That is, for recreational purposes. Tenants can still grow cannabis in their apartment for medical reasons if they have valid authorization from Health Canada, as provided by the federal law currently in effect. The “Calculator for the production of a limited amount of cannabis for medical purposes” on the Government of Canada website indicates the number of plants that may be grown based on the daily number of grams prescribed by a doctor. By the federal government’s own admission, this law needs to be reviewed. It can lead to rather absurd situations, as CORPIQ recently learned from a member. The landlord had to contend with a tenant who was authorized by Health Canada to grow no fewer than 244 cannabis plants for personal use!
Rental buildings cannot withstand a grow operation of this size without sustaining damages. Further, unless specified in section B of the lease, converting a unit for cannabis growing purposes is considered a change in use of the premises. Cannabis cultivation can also lower the building’s value since owners are required to disclose any grow-ops to potential buyers.
Anyone in Quebec who grows cannabis for personal use is liable for a fine of $250 to $750 for a first offence. The amounts double for further offence. Selling cannabis for commercial purposes will still be illegal, with fines varying from $5,000 to $500,000.
Cannabis smoking will be prohibited in the common areas of residential buildings with two or more units, with fines ranging from $500 to $1,000.