THE KEY
Cannabis: Post Legalization By Michael Drouillard It has been over a year since cannabis use and personal use cultivation was legalized in Canada. Despite some predictions that the sky would essentially fall on rental housing providers, it is largely business as usual. Perhaps this is in part because consumers typically choose to purchase cannabis rather than go through the hassle of growing their own in their homes, so the increase in personal use cultivation was not to the magnitude as expected. Also, consumption is not as disruptive to neighbouring occupants as expected, perhaps because the most disruptive means of consuming cannabis, smoking, is not necessarily used as frequently as edibles or vaping. All of this said, there have been many Residential Tenancy Branch hearings in the past year concerning a tenant’s use of cannabis in a rental unit, and so legalization certainly has had an impact on operations, and it is worth reviewing your rights and responsibilities as a landlord as it concerns a tenant’s potential use and cultivation of cannabis in your rental unit. Residential landlords have always had a common law right to restrict a tenant’s use of a property by contract. So, and for example, a landlord can prohibit a tenant from using a rental unit for a commercial purpose by contractual agreement, or from using certain items within it, like water beds. The only restriction on this right is that a landlord in British Columbia cannot impose a term that is unconscionable, conflicts with the Residential Tenancy Act, or contravenes human rights legislation. In this regard, although it is now legally permissible for someone to cultivate cannabis in his or her home, this does not mean you cannot restrict the practice in your rental unit. A landlord can prohibit a tenant from cultivating cannabis in his or her rental unit by contractual agreement. Doing so is not unconscionable, nor does the prohibition conflict with the Residential Tenancy Act. There may be cases where a tenant could show a reasonable basis under the Human Rights Code that the need for personal cultivation is as such that they have a protected right to do so, but such a case is unusual and would extend only to circumstances where there is a bona fide medical reason that cannot be reasonably accommodated by other means. Incidentally, and thanks in part to advocacy by LandlordBC, section 21.1 of the Residential Tenancy Act was enacted by the province before legalization to deem all existing tenancy agreements to include a contractual provision prohibiting a tenant from cultivating cannabis in his or her rental unit unless it is cultivated for a medical purpose under authorization from applicable federal law. This deeming provision protected landlords and the status quo. Moving forward, it is necessary to have express contractual language prohibiting cultivation. Section 21.1 only applied to existing tenancies at the time it was enacted. Notably, the form of residential tenancy agreement offered by LandlordBC includes a prohibition against personal use cultivation. Secondly, a landlord can control how cannabis is consumed in a rental unit. A landlord cannot simply prohibit a tenant from consuming
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cannabis. Although doing so does not breach any express term of the Residential Tenancy Act, such a term likely is unconscionable and would not be enforced by a residential tenancy arbitrator. A landlord can instead, by contract, restrict how cannabis is consumed by, for example, prohibiting cannabis from being smoked in the rental unit. Such a term likely isn’t unconscionable, since it doesn’t blanket prohibit a tenant from using cannabis. In respect of human rights legislation, the tenant would have to demonstrate that smoking cannabis is not only a necessary means of consuming cannabis for a medical purpose, but that this medical need cannot be reasonably accommodated by, for example, requiring the tenant to smoke cannabis outside of the rental unit and away from other building residents. While it is theoretically possible that someone has a medical need of this kind that would have to be accommodated, legitimate cases of this kind seem highly unusual and will not apply to the typical tenant. It’s notable that this area of the law is not yet settled and that there have been no full hearings on the merits before the B.C. Human Rights Tribunal addressing this issue since legalization. Importantly, section 21.1 of the Residential Tenancy Act also deemed all existing tenancy agreements to include a prohibition against smoking cannabis inside the rental unit, provided that the tenancy agreement at the time already had a contractual prohibition or limitation against smoking. To the extent the prohibition or restriction applied to smoking tobacco, it is deemed to include smoking cannabis as well. Also, the LandlordBC form of tenancy agreement includes a prohibition against smoking cannabis. The undersigned’s view is that, with good business practices, including the use of contractual prohibitions against personal use cultivation and the smoking of cannabis in tenancy agreements, as well as a robust and informed approach of accommodation to unusual cases of human rights claims by tenants who claim medical needs to cultivate and smoke cannabis, the impact of legalization on your rental property can be minimized and controlled. Michael Drouillard is a real estate lawyer whose practice is intentionally split between commercial real estate transactions and real estate disputes to give his clients dynamic legal advice in a shifting cooperative or adversarial context. Michael is also a director of LandlordBC.
