Recreational cannabis is now legal in Canada, which does not mean that you have the right to smoke it anywhere, including in the comfort of your own living room. A condominium owner has just been ordered to pay more than $100,000 to the co-owners’ union which took him to court to stop this practice.
Personal use of cannabis for recreational purposes was legalized in 2018. But smoking it can still have consequences, even if they are not criminal. Indeed, a co-ownership association can completely prohibit an activity that is otherwise legal, explains M.e Marjolaine Condrain-Morel, lawyer and popularizer at Éducaloi.
In short, the thought: “I’m at home, I do what I want” has its limits in a condo tower.
A year before legalization, a chic condominium building in L’Île-des-Soeurs, in Montreal, adopted three by-laws to prohibit all consumption and cultivation of cannabis. The ban targets common areas, but also “private areas”, that is to say the interior of the apartments.
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 to complain about the smell of cannabis emanating from his home. A first notice of infringement was sent to him in October 2019. But nothing changes and the complaints follow one another – a neighbor sent 80! — and a second notice of infraction was given to him in January.
The man admits to being a cannabis user, but denies having smoked in his apartment. He claims the smell is either coming from his clothes when he smokes outside or from another apartment.
Alas, the co-ownership association files a request for an injunction. A judge then ordered Mr. Mokaddem to stop smoking cannabis in his apartment and on his balcony. The man persists and is convicted of contempt of court. He continues, according to the union, which modifies its request to demand the sale of his condo and claim damages.
Clear regulations
For Superior Court Judge Martin Sheehan, the condominium’s cannabis regulations “do not suffer from any ambiguity.” It’s forbidden, period.
“Regulations prohibiting co-owners from smoking in their private areas have already been considered valid by the courts. In fact, these are justified by the health risks posed by second-hand smoke and the inconvenience that can be caused by odors,” he wrote in his decision rendered at the end of fall.
The evidence in the file demonstrates “unequivocally” that Mr. Mokaddem repeatedly contravened the regulations, he ruled. Several neighbors testified. One lady described smoke and strong odors that she smelled even in her home, causing headaches and trouble sleeping. Union representatives knocked on his house more than once after complaints: when he opened his door, the smell was even more overwhelming, leaving no doubt about its origin, they testified. And when Mr. Mokaddem goes to Morocco for a few months, the fumes stop – as do the complaints – but everything starts again as soon as he returns.
In this complex, the regulations provide for the possibility for the co-ownership association to claim legal fees incurred for legal proceedings — up to 15% of the value of the apartment in question. For multiple procedures 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 of Éducaloi. “It’s completely legal to own a dog. The police are not going to show up at our house because we have a dog. But in our condominium unit, if the condo rules prohibit it, I must comply with these rules and not own a dog. »
In a condominium, we accept the fact that we live in a community, which has its rules, continues the lawyer. The regulations that were adopted by the co-owners are a contract. “And what is written in this contract is our law. »
She gives other examples of what has been banned by condominiums: cigarettes, BBQs and certain Christmas decorations.
The Civil Code of Quebec provides that a co-ownership association can request the legal sale of the housing of the owner who refuses to comply with an injunction. Here, the union tried it, but Judge Sheehan did not allow it: the sale is a “horse remedy” which should be reserved for exceptional circumstances, he said. A fact that weighed in the balance was that Mr. Mokaddem had left the country and put his condominium up for sale: he would no longer be able to bother his neighbors, concluded the magistrate.
Me Condrain-Morel points out that there are other places, besides condominiums, where citizens cannot smoke cannabis: in parks and on sidewalks, for example. A tenant’s lease may also prohibit it. In short, restrictions exist, even if cannabis is legal.