By Mark Weisleder

I am already receiving calls about how sellers, buyers and real estate agents are to prepare for the new Cannabis Act, now scheduled to become law in October. I have booked seminars at real estate boards throughout the GTA over the next few months to explain this in more detail. Here are five things you need to know:

1. How much cannabis can be grown legally in a residence once it becomes legal?

Four cannabis plants may be grown in each residence. This includes apartment or condominium units. Under federal legislation, this could also include an outside garden that is part of a home. The provinces will each determine whether to permit this outside growing.



2. Will there be any standards as to what constitutes “safe” growing of cannabis?

Right now, there do not appear to be any regulations in place. You will undoubtedly see “tool kits” or “indoor tents” being marketed for this purpose, with marketing claiming that this will prevent mould from forming behind the walls, for example. Still, professional electricians will likely be required for this, preparing proper ventilation from the plants to the outside, as additional protection against mould.

3. Should a seller and real estate agent disclose the past existence of cannabis plants on the property once it is legal?

In my opinion this will be an issue, as to whether it can be classified as a material latent defect, which would have to be disclosed. Since mould behind the walls that the seller knows about could satisfy this test, there will likely be litigation when it is not disclosed and problems arise after closing.

4. Can you stop a tenant from smoking cannabis or growing cannabis plants?

Even though it is legal, you can include a clause in a lease to stop any tenant from smoking or growing cannabis on the premises. This should be inserted into every lease. If the tenant then smokes, it will be easier to evict them. While medical cannabis users may raise human rights issues, it is still better to have this clause in the lease right from the start to have a defence.

5. What will condominiums do to stop cannabis from being smoked or grown?

Some condominiums are already passing rules to stop any kind of smoking, whether cigarettes or cannabis and growing of any cannabis plant. Others may set aside an area of the building for users, or just for medical cannabis users. Others may just wait and see and attempt to rely on provisions in condominium law that you cannot commit a nuisance to your neighbours. Then, if the smoking is bothering your neighbours, they can bring action to get you to stop.

1 COMMENT

  1. One issue regarding value might arise that doesn’t have so much attachment to the subject property itself, but how does the mould issue or possibility thereof, affect the value of adjacent or contiguous common wall structures?

    Even if construction is made of impenetrable material, the joiner substances may not be; other glue-like products or sealants that already gas-off in their own natural state (glue under carpet or under pad), at floor or ceiling meeting spots, window frames; common element air conditioning, ducts (and when were they last cleaned in any building including hotels, anyhow? Just waiting for the delicious fodder to penetrate… And multiply!

    Bathrooms are ideal examples with kitchen venting running a close second; all the natural cooking steam setting up the perfect mould-growing environment where bulkheads follow the feed-line of the ducts, allowing more than just fumes to travel. The idea of venting being to expel the unnecessaries. But what gets entrapped en route?

    If I were a buyer I would be concerned about each enjoined property on all sides, whether condos or not. Sometimes ordinary cigarette smoke on a next door neighbour’s patio can make your own patio an unusable space.

    In the 1960’s people already living here and had no garlic-experience complained of cooking odours permeating the air in surrounding environments, garlic being the flavour enhancer of choice of the influx of immigrants at the time. Next came curry, sometimes intense, filling adjacent airways with its pungent scent. Onions and cabbage give off their own bouquet, and is found offensive by many. But year by year these “fragrances” became part of the wonderful food culture that is now enjoyed by original locals. But where does the odour of cannabis fit in the order of things? Why does it smell like skunk? Or like boy-cat spray? Burn the nasal passages, and get into the shared laundry facilities?

    Cigarettes leave a sticky oily sometimes orange-colour nicotine substance on walls and ceilings that must be specialty cleaned before re-painting can be attempted.

    I don’t know if this also applies to cannabis. Popcorn ceilings are a nightmare at most times; if there’s ever a leak of any kind, there’s really no dealing with it. And they harbour outstanding discolouration. They are particularly subject to adherence and cannot typically be washed or even painted, unless sprayed. The popcorn is mostly water-soluble. I don’t know of any way around that except when building to pay extra for smooth plastered painted ceilings (don’t ever use “shiny” enamel type paint on ceilings; always choose matt).

    Want to see the real colour of a wall in the property you want to buy? Take a small screwdriver along and gently remove a light switch toggle receptacle cover. Be prepared for a maybe surprise. Nicotine residue or mould might be there, too.

    It’s not just about specific subject property value but about devaluing neighbouring property to the point that the nearby property might not sell at any price. So…. You buy with an all clear, and your neighbour soon after sells – to a cannabis user/grower. Now what? Your whole situation changes – again.

    Looks like a possible monster-value proposition that cannot be accounted for. And that’s not talking overkill. An ideal make-work project for lawyers to create new findings. Judges won’t have answers at the ready. Impossible odds. Perfumes and air fresheners certainly aren’t the answers. And what if moulds don’t show up for a few years – after infiltrating your lungs… and your baby’s lungs, who perhaps already has asthma?

    Is there a relative statute of limitations? And how property insurance will be affected, if at all. And those specialty home owner’s protection packages? And does title insurance play any role?

    Off-topic but true: Many changed owners found out that if a fence is in the wrong place, according to the survey, the issue was not covered by title insurance even when their closing lawyer said otherwise. How different will the down the (cannabis) garden path look in a few years?

    Will cities try to make the responsibilities of cannabis reporting the job of the real estate agent, not unlike the reporting of illegal basement apartments quasi bylaw enforcement debacle of a few years ago, demanding that agents report such findings to the city, where at least one brokerage told their agents: simply don’t list those houses… Walk away. Really.

    In this new situation where does the real estate agent’s job begin and end? And what part of fiduciary duty covers this topic? Your broker won’t know, your local politician won’t know, your lawyer won’t know. And there will be no answers to upcoming questions for a long time down the road.

    As agents, the chief topic related to the issue is, as always: “representation.” Careful what you sign on for… and for whom. When misrepresentation bites you, it will be reflected in your paycheque.

    http://www.remonline.com/will-legal-home-grown-pot-hurt-sales/

    Carolyne L 🍁

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