Posted by: Daryl & Wendy Ashby | June 21, 2010

Do They Have a Pot Permit?

In 2001, the federal government passed a law (the Marijuana Medical Access Regulations) allowing persons requiring marijuana for medicinal purposes to grow it in their homes, provided they had a federal permit to grow a defined number of plants. About 2500 of these permits exist across Canada today.

The flaw in that law resulted from the government’s failure to first consult with the Real Estate and Property Management Industry, where they would learn the difference between owned residences and rented ones, single unit buildings and apartment or condo buildings.

That distinction is not made in the Regulations. If a person obtains a permit and grows marijuana in his own, single family residence, the consequent odours, potential damage, etc. are totally under his control and for his account. His growing doesn’t affect anyone else.

The same cannot be said for rented single family units, or for a unit in an apartment building.

The odours can disturb other tenants and any damage to the property could ultimately cost the property owner money to repair and in some cases having them rendered uninhabitable by governmental authorities.

The question is; “What can a landlord do in such circumstances?”

Fortunately, there is a recourse. You can take the position that while growing may be legal, that doesn’t override the “grower’s” responsibility not to disturb other tenants or damage the landlord’s property.

This was the position taken by dispute resolution officers in two hearing involving the same tenant.

The unit was a side by side duplex with a storage shed in the back yard. The tenant began growing marijuana in the storage shed and set up extension cords from his unit to the shed to connect the hight wattage lamps. The landlord discovered the operation and asked the tenant to remove it from the shed, because of the damage caused to the shed and the risk of fire from the electrical hook-up. The tenant declined on the basis that he had a federal permit to grow marijuana.

After a written warning was ignored, the landlord issued a Notice to End Tenancy for jeopardizing the landlord’s lawful right and putting his property at risk. The tenant challenged the notice and the dispute resolution officer ruled that the landlord didn’t have sufficient evidence of damage and therefore overturned the Notice in favour of the tenant. However the Officer did rule that the tenant was not entitled to use the shed to grow his crop as it was not considered his home as stipulated in the grow permit.

The tenant then moved his grow operation (48 plants) into the rental home. Complaints came forward once again from the neighbouring unit of the noxious odours and again the landlord issued the warning when unheeded, the adjacent tenant moved out and the Landlord followed proceeded with the Notice to End Tenancy to the offending tenant.

This time the Notice was upheld but the resolution officer stating:

“I find that (the tenant’s) failure to deal with the smell from the marijuana grow operation was a major contributing factor in the landlord losing another tenant from the rental property. For this reason, I find there is sufficient evidence to conclude tha the Tenant has significantly interfered with the Landlord and unreasonably disturbed another occupant of the rental property.”

The Landlord’s request for an Order of Possession was granted.

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