Condos should use rules not bylaws for pot


Joel Berkovitz Head Shot

Condominium corporations should adopt rules that prohibit growing marijuana in their complexes ahead of legalization later this year, says Toronto condominium lawyer Joel Berkovitz.

While the pending federal law will allow people to grow four plants for personal consumption, growing marijuana isn’t compatible with condos because of the amount of energy and water it needs, says Berkovitz, a lawyer with Shibley Righton LLP.

He tells growing plants will require heat and humidity — both of which are major factors in mould growth.

"And once you get mould in a unit and it starts spreading, it's incredibly hard to contain and very expensive to treat," he says.

"It also takes a significant amount of electricity and, if the cost is shared among all the owners, is it fair that you're paying for the guy down the hall who’s growing marijuana?" he wonders. "I would say probably not."

The province limits where marijuana can be used and who can use it, says Berkovitz.

He says his firm is urging clients to implement rules rather than bylaws to prohibit the growing of cannabis.

Bylaws focus on the governance of condos, he explains, while rules deal with safety, security and preventing unreasonable interference with the enjoyment of the building.

As for smoking marijuana, the legislation will prohibit its use in public spaces and indoor common areas, Berkovitz says. Whether someone can smoke marijuana in their unit or on their balconies at a condo depends on each building's rules, he says.

Indoor smoking is "something the individual condos have to decide on," Berkovitz says.

He says some clients don't want to add new rules but are instead relying on "existing prohibitions regarding behaviour that interferes with the use and enjoyment of the units or common elements by other owners."

"Nearly every single condo in Ontario will have a rule in place that prohibits owners from causing a nuisance or interfering with other owners' enjoyment of their units," says Berkovitz. "Condo boards can, if they wish, rely on these existing provisions to control the potential for second-hand smoke," says Berkovitz.

"Others want to be more proactive and specifically address this so owners fully understand what is and isn't allowed," Berkovitz says.

"Most places are putting in full bans on smoking marijuana anywhere on their property," he says, adding the main concern involves smoke migration through conduits and under doorways, or via balconies.

"Smoke does have a way of getting into neighbouring units and most condo boards are thinking, ‘Why allow another potential nuisance when it can be prohibited,’" Berkovitz says.

Tobacco smokers were grandfathered as anti-smoking legislation developed, he says. Berkovitz says there will likely be no need to grandfather existing marijuana smokers, as it is currently not legal.

But, he says, condo rules, bylaws and declarations won't apply if the user has a medical reason to smoke it.

"This need for accommodation will take priority over the condo's governing documents," says Berkovitz.

Eating marijuana in baking or cooking is an alternative to smoking it and won't disturb neighbours, he suggests.

"The owner could say that they need marijuana for medicinal reasons, but the condo can respond by saying, ‘Tell us why you have to smoke it,’" Berkovitz says. "It'll be interesting to see if that becomes more common once legalization comes into effect.

"I think most condos would say if you can do it in a way that doesn't impact anyone else, we don't want to get involved," he says.

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