Residential Tenancies and Marijuana

Shawn Smith
Real-Estate Law

Today, non-medical marijuana was officially legalized across Canada with the coming-into-force of the Cannabis Act. For residential and commercial landlords, legalization brings unique challenges. Does your lease allow for the recreational use or cultivation of marijuana? The answer may surprise you…  

On its own, the Cannabis Act enables individuals over the age of 18 to possess up to 30 grams of dried marijuana (or its equivalent in other forms) and allows each household to grow up to four marijuana plants. However, BC has narrowed these activities with the Cannabis Control and Licensing Act (the CCLA) which raises the minimum age for the purchase and consumption of marijuana products to 19, prohibits cultivation in spaces such as residences used as daycares, and prohibits use in places like the common areas of a condo complex. The CCLA also amends the Residential Tenancy Act in a way that provides some protection, but also some liability, for landlords moving forward.

First, all tenancy agreements entered into before October 17, 2018 that include a term prohibiting or limiting tobacco use will be deemed to also prohibit tenants from smoking non-medical marijuana. Importantly though, any tenancy agreement in place prior to October 17, 2018 that does not prohibit or limit tobacco use, or that expressly allow tenants to smoke tobacco, will be deemed to allow tenants to smoke marijuana recreationally. Second, all tenancy agreements entered into before October 17, 2018 are deemed to prohibit non-medical cannabis cultivation in or on residential properties.

In addition, vaping, or the vaporization of marijuana, is not considered smoking for the purposes of the CCLA, so whether or not your pre-existing tenancy agreement currently limits or prohibits smoking, it will not affect a tenant’s ability to vape recreational marijuana.

Because these changes are retroactive, landlords wishing to limit or prohibit non-medical marijuana smoking, vaping, or cultivation will need to do so expressly in any agreement entered into after October 17, 2018. For pre-existing tenancies, restrictions may be instituted by means of an addendum.

This article is intended for information purposes only and should not be taken as the provision of legal advice. For more information, contact Cleveland Doan LLP at 604-536-5002 or 1321 Johnston Road, White Rock, BC, V4B 3Z3.