What is a landlord to do about marijuana smoke?
With the legalization of medicinal and recreational cannabis in Ontario landlords are finding themselves confronted by problems that are bolder now than they once were. Before legalization, tenants for the most part sought to consume their cannabis in a way that drew as little attention as possible. As the practice was illegal, bothering other people and other tenants with cannabis smoke was easy grounds for serving a Notice of Termination and for eviction if the activity did not stop. That isn't quite the case anymore, at least not in as straightforward a manner.
Tenants (and Ontarians generally), no longer need to be concerned about the legality of their behaviour in smoking cannabis. Given that the government licences the sale of the product, in various forms, the stigma once associated with cannabis consumption is waning. As the practice becomes more accepted people are less concerned about "where" and "when" they smoke. People who never smoked cigarettes are indeed smoking cannabis. These people don't have the experience of being a shunned tobacco smoker and don't have the experience of dirty looks and being sent outside 9 metres from the nearest opening to the building. Many cannabis smokers simply think "It's legal", so they smoke without thinking that the cannabis smoke they create is as disturbing, bothersome, allergic reaction inducing and asthma exacerbating as tobacco smoke.
Landlords are getting calls from other tenants in their buildings. The calls are complaints about cannabis smoke, the smell of smoke infiltrating other units, smoke drifting through open windows, and smoke coming through shared ventilation systems. In the face of complaints landlords will approach the marijuana smoker (or suspected smoker). Some respond politely, but others deny smoking, assert a right to smoke, assert a Human Right to smoke, or even further suggest that prohibiting smoking cannabis interferes with their use of their "medicine".
What does a landlord do? What must a landlord do? Forget about any moral imperative, personal view on the wisdom of cannabis consumption, the essence of the question is what is a landlord's obligation when other tenants are bothered by the presence of cannabis smoke in the residential complex?
If landlords do not respond properly to a complaint about the presence of cannabis smoke the landlord can face an application to the Ontario Landlord and Tenant Board by the tenants who are complaining. While the landlord isn't the one smoking, the landlord is made responsible for not adequately dealing with the presence of the cannabis smoke because it is the landlord's duty to ensure that her tenants in the residential complex have quiet and reasonable enjoyment of their home. The duty arises under the Residential Tenancies Act and it is further an implied term in every residential lease in Ontario. If a landlord breaches this duty, then the landlord can face a variety of remedies including a significant rent abatement, associated costs, claims for damages, moving expenses, rent differentials if the complaining tenant was forced to move, and a wide range of expenses limited in scope only by the imagination of the complaining tenant and the LTB's willingness to entertain the claim.
A REAL LIFE EXAMPLE and BOARD ORDER dealing with this issue.
I have recently had a case at the Landlord and Tenant Board dealing with cannabis smoke, complaints about it, and a constellation of interesting if not bizarre additional complications and facts. This case, reproduced below (with redactions of the address and last names of participants), demonstrates how my landlord client dealt properly with the complaints about cannabis smoke, the presence of marijuana plants, denials, medical cannabis, recreational cannabis, severe disabilities, and conflicting statements by a host of different tenants. In this decision, Adjudicator Moniz makes a careful analysis of the various complaints, the impact of the presence of marijuana smoke on the complainants, the reason for the presence of the smoke, the presence of the marijuana plants in the yard, and the steps taken by the landlord to deal with the complaints.
It is significant to recognize that Adjudicator Moniz accepts that the complainers were indeed bothered and upset by what they alleged occurred. The fact (found as a fact by the adjudicator), that the tenant's were bothered is not the test for entitlement to damages (expenses, rent abatement, moving expenses) at the expense of the landlord. If the fact of being bothered was the test then the landlord would effectively become the insurer (guarantor) of a tenant's happiness in a rental unit and automatically be liable for any interference (by any other tenant) with that quiet enjoyment.
In this case, the tenant's claim against the landlord is dismissed because the landlord responded reasonably and in accordance with the established precedents on how a landlord is to deal with complaints (i.e. take reasonable steps to correct the intrusion of a neighbouring tenant on a tenant's right to quiet enjoyment of a rental unit).
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We live in a basement appartment and the upstairs tenants are constantly making the whole house smell like weed. it sounds like in this case there isn't much we can actually do besides complain or move out? we've complained numerous times and they have sent emails and talked to the people upstairs but it hasn't really resulted in any changes. they say they are smoking outdoors but the house still stinks. we have small children in the house. thanks for any help!
ReplyDeleteHi: If you are in a house, as you describe, you are likely sharing the Heating Ventilation Air Conditioning (HVAC) in the house. The cold air returns located on all of the levels of the home are vents that the furnace draws air back through and down to the furnace. That air, once drawn back to the furnace usually gets filtered then either heated or cooled and then pushed back out through all of the vents in the house on all levels. This would also happen if only the fan was running (without heating or cooling) and just circulating. Given how this functions, the air from all of the house is potentially redistributed throughout the house and this is why you smell the cannabis smoke in your unit. If you are sharing the HVAC no amount of sealing or keeping windows closed is going to stop the smoke they create inside their unit from entering your unit.
DeleteUnderstanding how the smoke smell gets into your unit is handy in bringing your claim against the landlord.
You should write to the landlord and advise of the constant smell of cannabis in your unit. Advise that landlord that action must be taken for this to stop immediately. Advise the landlord that you are bringing in witnesses to smell the cannabis and to verify the presence of the smell in your unit. Advise the landlord that you will be filing a T2 application and a T6 application against him at the LTB and that you are seeking a 100% rent abatement, a fine, and an Order requiring the landlord to hire an HVAC specialist to price and install electrostatic air filters and such other filtering equipment as necessary to treat the air so that the unit is fit for habitation. You should advise the landlord that he is in breach of section 20 and 22 of the Residential Tenancies Act and that this is the basis of your claims at the LTB. Advise the landlord that he needs to take action against the upstairs tenants and cause the tenant to stop smoking cannabis in the house and to prevent cannabis smoke from entering your unit. If the landlord responds by parroting the tenants' claim that they smoke outside you can certainly invite him to smell the smoke in your unit and to explain where the smell is coming from.
Make sure to inform the landlord of your intentions, in writing, and follow up several times asking what he has done, what he intends to do, and whether he intends to do anything. If there is no satisfactory action you can proceed with the T2 and T6 application.
Ideally, you will retain a lawyer or paralegal to assert your rights and to file these claims for you. Cost of course is a factor, but if you simply move away from the problem there will be unrecoverable costs there too. While you may certainly represent yourself claims against a landlord for the actions of another tenant are tricky claims that are best prosecuted by experienced paralegals and lawyers.
Best of luck
Michael K. E. Thiele
www.ottawalawyers.com
What if your 4 other roommates smoke weed in the house and you are allergic to it. You gave your landlord a Dr note that stated this and the other tenants are still smoking it in the house and the landlord won't do anything about it. Is there anything I can do to the landlord and other tenants legally?
ReplyDeleteI have to assume from your question that you live in a rooming house type of property? On that assumption you basically have a lease for a bedroom and you share common spaces with the other tenants who have leases for their own bedrooms and share common spaces (i.e. kitchen, bath, living room). If that is your living scenario then the landlord is required to take action against the other tenants (even though you are calling them roommates). Your allergic reaction to the smoke is a substantial interference with your reasonable enjoyment. Hence, the landlord is obligated to follow through with a Notice of Termination if the tenants do not stop smoking. If the landlord does nothing then you can file an application against the landlord--take a look at a Form T2.
DeleteIf your living arrangement is not as I describe above--but your roommates are actually your co-tenants on a single lease--well then, your landlord has very limited ability to do anything. And IF the landlord does take action it would necessarily terminate the tenancy that includes your occupation of the property. There is very little that can be done by landlord's when it comes to the relationship between co-tenants.