Tuesday, July 16, 2019

Cannabis as a nuisance in condominium complexes

The internet has given rise to lawyers sharing thoughts about various aspects of the law.  The following article by William Kolobaric is instructive in respect of how the enforcement of nuisance bylaws will be critical to managing cannabis:


I repeat the following from this excellent article from a US perspective:

"Marijuana as a Nuisance
 As a result of the legalization of medical marijuana or marijuana, in general, many condominium projects are now seeing a rise in marijuana use resulting in increasing “marijuana odors” in the hallways, throughout the buildings and in other common areas.  The odor coming can be offensive, intrusive and affect the quality of life of the other co-owners, much like it is with cigarette secondhand smoke.   This is particularly so in condominium projects where smoking in the hallways and/or in one’s unit can result in the smoke and odor entering the residence of all of the co-owners on that floor and/or building.   Moreover, marijuana smoke carries the drug THC, which has numerous side-effects, such as, a decrease in short-term memory, dry mouth, impaired motor skills, reddening of the eyes, and feelings of paranoia or anxiety.  Therefore, many members are concerned with the increase in or potential increase of marijuana use within their condominium projects and are requesting their Boards to address the issue.
 Addressing the Nuisance
 The majority of condominium bylaws have a nuisance provision that prevents a co-owner from doing any activity that may be or becomes an annoyance or a nuisance to the other co-owners of the condominium project.  Thus, the Board can address the marijuana odor by asserting that the practice by the co-owner is a nuisance and/or health problem to other co-owners which under most condominium governing documents allows the Association to warn and/or penalize the co-owner if the infraction continues.  The Board may require the individual to run HEPA filters inside his/her unit, seal all penetrations in walls, ceilings and floors, and install weather-stripping and door sweeps on doors to stop the “odor” from migrating into the common areas and surrounding units.
However, many co-owners feel that the above actions are not enough.  Currently, there is a growing trend in condominiums nationwide to impose a total ban on allsmoking regardless of the source anywhere on the property—common areas, indoor and out, and even in the individual residences and on their balconies and patios.  The rationale is that secondhand smoke is a proven health hazard and it is impractical or impossible to prevent smoke from migrating into common areas or other residences due to inherent construction and ventilation limitations.  In addition, the Board can also use the nuisance provision to prevent marijuana use as an illegal activity, as it is still a violation of federal law."

I also found these articles instructive from an Ontario perspective: