Smoking Cannabis in Condominiums

Smoking Cannabis in Condominiums:

Designated Outdoor Smoking Areas

 

                                                Victor Yee                                                              Yash Mehrotra

                                            Hons. B.A., J.D.                                                         B.A. (Hons.), J.D.

                                 Associate, Elia Associates                                 Associate, Elia Associates

                                                                      

The legalization of cannabis raises new challenges and issues for condominium corporations. Until now, condominium corporations have been able to rely on provisions of their declarations, by-laws or rules regarding illegal activities on condominium property to prohibit the use of cannabis in its various forms; irrespective of whether such cannabis use caused a nuisance to others or not.

 

The primary challenge with the legalization of cannabis concerns the potential for increased smoking of cannabis in condominium units. Cannabis smoke can be quite potent and is known to permeate through walls, especially in closed quarters such as multi-story condominiums, which raises health and safety concerns as well as being a nuisance to neighboring units.  Accordingly, many boards of directors have considered prohibiting smoking at their condominium corporations by way of implementing new rules, new by-laws and/or amending their condominium corporations’ declarations.

However, like other property owners, owners of condominium units have the right to the enjoyment of their property so long as the use is legal, which now includes the legal right to smoke cannabis. Thus, boards are caught in between the competing interests of individual “users” and the collective condominium community. In view of this, many boards have asked:

What can a condominium corporation do to regulate or prohibit the smoking of cannabis on its property, so as to balance the interests of all constituents of the condominium community?

If a board is considering prohibiting smoking in the units, on the exclusive use common elements and on the general common elements, the board may want to consider providing an exemption to the prohibition by permitting smoking at a designated outdoor smoking area in order to balance the interests of the community as a whole.

Benefits of a Designated Outdoor Smoking Area

The benefits of creating a designated outdoor smoking area are fourfold:

  1. Residents are provided an alternative to smoking inside their units. This would help reduce the risk of fire, avoid subjecting other unit owners and residents to the dangers of second-hand smoke, and prevent odours from cannabis smoke from causing a nuisance to other residents inside the building. Practically speaking, it is often difficult to completely seal a smoker’s unit so that no odours or smoke escape from the confines of that unit’s boundaries; allowing such a resident to smoke outdoors at the designated smoking area instead, would help mitigate that practical reality.

 

  1. If a condominium corporation is considering prohibiting smoking in the units, on the exclusive use common elements and on the general common elements, by providing exemption to the blanket smoking prohibition by permitting smokers to light up at an outdoor designated smoking area, the inclusion of the exemption will make the blanket smoking prohibition appear more reasonable – since smokers will still have somewhere to smoke. Additionally, un-cooperative smokers who simply ignore the smoking prohibition once same is in place would have less of an incentive to contravene the smoking prohibition as they would have a safe place outdoors to smoke legally. As noted above, this would help alleviate the known safety risks and nuisances associated with smoking indoors.
  2. For the purposes of the Occupational Health and Safety Act, R.S.O. 1990, c. O. 1 (the "OHSA"), the condominium corporation is deemed to be an employer and has a duty to take every precaution reasonable in the circumstances for the protection of its workers.  Outdoor designated smoking areas help condominium corporations with effectively controlling and managing any perceived or real health risks to workers and contractors while working inside.
  3. Lastly, the creation of an outdoor designated smoking area helps to build a condominium community accepting of all lifestyles, and provides a fair and balanced compromise between the smoking and non-smoking constituents of the community.

Selecting the Location of a Designated Outdoor Smoking Area

Because of the unique layout and amenities of each condominium, boards wishing to create a designated outdoor smoking area will have to select location for same that best achieves their community’s desired goals. In making this determination, boards should seek to find a balance among the following (often competing) considerations:

  • Is the proposed site for the designated smoking area accessible to those who would make use of it?
  • Is the proposed site for the designated smoking area in a low traffic part of the outdoor common elements so as to limit exposure to second-hand smoke by non-smoking residents of the building(s)?
  • Does the proposed site for the designated smoking area comply with requirements of the all applicable statutes and regulations?

For more information with respect to designing a solution that works for your condominium community based upon its unique needs, contact a condominium professional to assist your Board through this process.