January 12, 2018 - Smoking pot in one’s condo may disturb several co‑owners, if cannabis second-hand smoke migrates from your apartment to another. Lawyer emeritus and RGCQ's general secretary, Yves Joli-Coeur, foresees several difficult situations to manage in condos, when recreational purposes marijuana is officially legalized in the country.
The problem will become acute in many Quebec and Canadian larger cities, because of urban environment densification. Currently, the number of skyscrapers housing condos is increasing, and this trend will continue inexorably. "It is surprising that the Province is not concerned by this issue," said Yves Joli-Coeur during an interview last Friday on Radio-Canada, as part of a TV show hosted by journalist Isabelle Richer.
Adopting a by-law to ban marijuana
To reduce inconveniences caused by pot in co-ownerships, he stated that “The syndicates of co-owners will be able to regulate, or even prohibit cannabis use in their immovable’s common portions such as corridors, lobbies and balconies. It will not be difficult to reach the required majorities in general meetings”.
Before legalization, they will even be able, with the same ease, to prohibit smoking cannabis in private portions, by having such a by-law approved by the majority vote of the co-owners present or represented at the general meeting.
However, prohibiting a co-owner from smoking pot in his own condo after legalization, will be another story. Indeed, even though the majority to adopt by-laws affecting private portions will be the same, it is to be expected that without the unanimous consent (100% approval) of the co-owners in favor of the implementation of the cannabis ban in private portions, the syndicate may be confronted with enforcement difficulties.
Indeed, article 1102 C.c.Q. will give those co-owners who smoke or want to smoke cannabis in their private portion a standing to allege that the said by-laws are unenforceable against them and that any penalty imposed upon them in application of these by-laws is null and void. Their position would be based on the fact that the decision of the syndicate (acting through the general meeting of co-owners) changes the use they can make of their private portion, because this use was possible before the implementation of the by-laws.
In short, to wait after cannabis legalization to adopt by-laws prohibiting co-owners from smoking cannabis in their private portion, is exposing the syndicate, and the board of directors to hassles and complex legal issues that a proactive attitude will avoid.
Individual rights versus collective rights
"In the current state of affairs, the Civil Code is more focused on individual rights than collective rights," says Yves Joli-Coeur, who believes that the province of Quebec will have to reflect deeply on collective housing, particularly upon co-ownerships issues, so that additional powers be granted to change the rules.
You can listen to the entire interview by clicking on this hyperlink. The interview begins at 15 minutes and 33 seconds of the audiovisual document.
Montreal, January 12th, 2018
Source : Radio-Canada