How will the legalization of Cannabis affect Landlords and Tenants?
With cannabis set to become legal for recreational cultivation and consumption this summer, this sets the table for a large legal and societal shift in the rules and expectations surrounding cannabis consumption. While most of the changes will involve alteration of how the government and its agencies interact with the public, there will also be a change in how private citizens interact with each other, especially when it relates to rental properties and residential tenancies.
Let's examine the mechanics of BC's Residential Tenancy Act (the "Tenancy Act") and how the new Cannabis Control and Licencing Act (the "Cannabis Act") makes changes to accommodate cannabis legalization.
The Residential Tenancy Act
The Tenancy Act seeks to strike a balance between three competing interests:
- a property owner's right with regards to their property, such as rights to exclude people from it, to sell it, to exploit it for profit and more;
- a tenant's interest is having safe, secure housing, protection of their privacy and exclusive possession; and
- the right of private parties to contract independently.
whether or not you think the Tenancy Act strikes an appropriate balance, and if fact does or doesn't, is another matter. Importantly, the Tenancy Act applies to all residential tenancies and cannot be contracted out of, with exceptions listed in section 4 of the Tenancy Act. Most common exceptions include situations where the tenant shares a bathroom or kitchen with the owner of the accommodation. In these situations, the right to contract triumphs and the Tenancy Act does not apply.
No Smoking Tobacco Clause
The Cannabis Act amends the Tenancy Act by adding a new section (s 21.1) entitled "Cannabis". If a tenancy agreement is entered into before the cannabis control date (i.e. before legalization) and it includes a term that prohibits or limits smoking tobacco, then the tenancy agreement is deemed to include a term that prohibits or limits smoking cannabis in the same manner as smoking tobacco is prohibited or limited.
Firstly, for example, if your tenancy agreement states "no smoking", that will apply to cannabis as well. If the agreement says "no smoking inside, tenant may only smoke on the balcony" then the same applies to cannabis (unless there is a separate "and no smoking cannabis" clause). To clarify, the amendment also states that vapourizing a substance containing cannabis is not "smoking cannabis" and does not have the same deeming provision as above. This means that unless you have a clause in your tenancy agreement that says " no vapourizing" then vapourizing will be permitted unless it otherwise significantly interferes with the landlord or other tenants.
Secondly, any tenancy agreement is deemed to include a term prohibiting growing marijuana plants in or on the residential property unless a) the plants are for medicinal cannabis b) growing the plants is not contrary to a term of the tenancy agreement and c) the tenant is authorized under federal law and is in compliance with the requirements of that law. So by and large, most tenants will not be able to cultivate marijuana plants in or on their leased property.
What About Implied Terms?
Some of you may find the above a bit unclear because of your specific tenancy situation. What exactly is your "tenancy agreements", and does it include a smoking prohibition? The Tenancy Act defines a tenancy agreement as "an agreement, whether written or oral, express or implied, between a landlord and a tenant respecting possession of a rental unit..." This vague definition means that terms discussed between the tenant and landlord but not written down may or may not be included in the tenancy agreement.
Let's pick an example to illustrate - let's say the landlord posted an ad that advertised that a unit was "non-smoking". When interviewing the tenant, the landlord asked if the tenant was a smoker, and the tenant answered "no". When it came to sign a written agreement, the landlord used the Residential Tenancy Branch lease template and did not add any extra terms about smoking. Is the tenant barred from smoking as an included term in the tenancy agreement? It's unclear, though the burden would be on the party attempting to enforce the implied term (in this case, the landlord) and given the standard common law rule that contracts are interpreted against the drafted (again in this case the landlord) it would be an uphill battle.
Tenancy Agreements After Legalization
The rules only apply to tenancy agreements made before the cannabis control date. After that date, landlords and tenants will be free to negotiate the term of the lease agreement as needed, including the smoking or growing of cannabis.
At this time, the legislation does not appear to grant any form of exemption for someone to grow medicinal cannabis plants to treat a medical condition for tenancy agreements made after the cannabis control date. Discriminating against someone of this basis (for example, by evicting them for growing marijuana plants) may or may not be contrary to the BC Human Rights Code which prevents discrimination based on mental or physical disability in tenancy contracts.
When and How Can I Evict?
A tenant can be evicted for a breach of a material term of the tenancy agreement. The Residential Tenancy Branch defines a material term as "a term that the parties both agree is so important that the most trivial breach of that term gives the other party the right to end the agreement". If that definition seems a bit tautological that's because it is. Generally, you can assume anything specifically added into a standard tenancy agreement, including a no smoking clause, will be material.
If a tenant does breach a material term, the landlord must first notify the tenant in writing with a request to comply with the tenancy agreement. If a tenant does not comply, then the landlord may serve a one-month "notice to end tenancy", effective one month after the day rent is normally paid. It's critical that landlords attempting to enforce the Tenancy Act, as well as tenants trying to dispute it, following the procedures required by the Tenancy Act.
Even without breaching a material term, you can similarly evict a tenant if their activities "significantly interfere with or unreasonably disturb" other tenants or the landlord. Be cautious though - cases have gone both ways on whether or not second hand smoke bothering other tenants is enough for an eviction. All of these cases will turn on the facts of the specific case.
If you need any legal advice on residential tenancies or if cannabis legalization is encouraging you to buy or sell property, feel free to call us and book a consultation.
This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250) 763-0318 or e-mail Jaime at firstname.lastname@example.org
This post was written by Jaime Boyle