Landlord / Tenant Issues: Growing Marijuana at Home

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In August 2016, the Access to Cannabis for Medical Purposes Regulations (ACMPR) came into effect. Canadians with medical need and the authorization of their health care practitioner may now register with Health Canada through the new regulations to produce a limited amount of cannabis in their own homes. The number of plants permitted depends on whether plants are being grown indoors or outdoors, and on the individual’s medical need.

These regulations are the response to a Federal Court decision from February 2016 which found the regime outlined under the Marihuana for Medical Purposes Regulations to be overbroad and disproportionate in limiting Canadian individual’s right to access a doctor prescribed treatment, and thus violated the Charter of Rights and Freedoms. While the decision does not specifically grant Canadian citizens the right to grow marijuana in their homes, permission was granted in the ACMPR, which was the response to the court’s decision.

The ability to legally grow marijuana in a personal residence raises a variety of issues, legal and otherwise, however in this post I will only be discussing the landlord / tenant relationship. Additionally, this post only deals with legal growers authorized under the ACMPR, not those growing illegally. The ACMPR seems poised to raise a few areas of conflict between landlords and tenants. Unfortunately, the regulations do not answer every question, and they have not been in place long enough for all questions to be answered through the courts.  Two relevant issues are addressed below.

First, the ACMPR does not always require a tenant to get his or her landlord’s consent to begin growing, or even inform them. The ACMPR only requires the property’s owner to provide consent if the property is not the primary residence of the grower. As the Federal court’s decision framed access to a prescribed treatment as a Charter issue, it is currently unclear whether the lease agreement forbidding the tenant to grow marijuana on a rental property would be enforceable.

Second, there is a question of who is supposed to bear potential costs of legal growing. Many insurance companies will not insure a property being used to grow marijuana. While this may change if marijuana use and cultivation becomes legal on a broader spectrum, a landlord today may face having to pay significantly more, or losing their insurance altogether. This raises the question of whether the extra cost of appropriate insurance may be transferred to the tenant.  Again, this is currently unclear as one of the Federal court’s primary concern was the prohibitive cost of access to prescribed marijuana.

These are just two issues that have emerged in the early days of this issue. No doubt other complications will emerge in the relationship between landlords and tenants in this situation. Unfortunately, there may not be any clarification until a case works its way through the court system and a judge provides guidance, or amendments are made to the legislation.

Please feel free to contact us for assistance if you are a landlord or tenant impacted by the new ACMPR and require assistance.

By Brittany Doucet