Recreational cannabis is now legal in Canada, but that doesn't mean you have the right to smoke it anywhere, even in the comfort of your own living room. A condo owner was just ordered to pay more than $100,000 to the co-owners association that took him to court to stop it.
Personal use of cannabis for recreational purposes was legalized in 2018. But smoking can still have consequences, even if they are not a criminal offense. Because a co-ownership community can completely prohibit an otherwise legal activity, explains Me Marjolaine Condrain-Morel, lawyer and senior popularizer at Éducaloi.
In short, the idea of “I’m home, I’m doing whatever I want” has its limits in a condo tower.
A year before legalization, a fancy apartment building on Nuns' Island in Montreal passed three ordinances to ban all consumption and cultivation of cannabis. The ban affects common areas, but also “private areas”, i.e. the interior of condominiums.
In 2019, Mohammed Mehdi Mokaddem became the owner of an apartment. He was informed of the existence of the regulations before his purchase.
But as soon as he moved in, neighbors began complaining about the smell of cannabis coming from his apartment. A first administrative offense report was sent to him in October 2019. But nothing changes and the complaints continue – one neighbor sent 80! – and in January he was served with a second notice of violation.
The man admits to being a cannabis user but denies smoking in his unit. He claims the smell is either coming from his clothes when he smokes outside or from another entity.
Unfortunately, the co-owners' association files an application for an interim injunction. A judge then ordered Mr Mokaddem to stop smoking cannabis in his unit and on his balcony. The man stands and is convicted of contempt of court. It continues, according to the union, which amends its motion to call for the sale of its unit and seek compensation.
Clear regulations
For Supreme Court Justice Martin Sheehan, the condominium's cannabis regulations are “not subject to ambiguity.” It's forbidden, period.
“Regulations prohibiting co-owners from smoking in their private areas have already been deemed valid by the courts. In fact, they are justified by the health risks posed by second-hand smoke and the inconveniences that can be caused by odors,” he wrote in his decision issued at the end of the fall.
The evidence in the file “clearly shows” that Mr Mokaddem repeatedly breached the rules, he ruled. Several neighbors testified. One woman described smoke and strong smells that she noticed even in her home, causing headaches and difficulty sleeping. More than once, union representatives knocked on his house after complaints: When he opened his door, the smell was even more overwhelming and left no doubt as to its origin, they said. And when Mr. Mokaddem goes to Morocco for a few months, the fumes stop – as do the complaints – but when he returns everything goes back to normal.
In the case of this condominium, the statutes provide for the possibility for the co-ownership association to claim the legal fees incurred in the legal dispute – up to 15% of the value of the residential unit. Based on multiple lawsuits and requests to various judges, including on appeal, Judge Sheehan ordered the man to reimburse the union $103,000.
The regulations are law
Smoking cannabis is a bit like owning an animal, illustrates Me Condrain-Morel from Éducaloi. “It is completely legal to own a dog. The police won't come to our house because we have a dog. But if the apartment rules in our unit prohibit this, I must abide by these rules and not own a dog. »
“In a condominium we accept that we live in a community that has its rules,” the lawyer continued. The regulations adopted by the co-owners are a contract. “And what is written in this contract is our law. »
She gives other examples of what was banned in condos: cigarettes, barbecues and certain Christmas decorations.
Quebec's Civil Code provides that a co-ownership syndicate may request the legal sale of the unit of the owner who refuses to comply with an injunction. Here the union tried, but Judge Sheehan didn't allow it: the sale was a “horse remedy” that should be reserved for exceptional circumstances, he said. What is crucial is that Mr. Mokaddem has left the country and put his condominium up for sale: he will no longer be able to bother his neighbors, the judge concluded.
Me Condrain-Morel points out that, in addition to condominiums, there are other places where citizens are not allowed to smoke cannabis: for example, in parks and on sidewalks. A tenant's rental agreement may also prohibit this. In short, there are restrictions even if cannabis is legal.