So here’s a little something about me…

I haven’t smoked marijuana since February 10th of 2005.

It’s been over fourteen years.

Coming out of university, I was an occasional marijuana smoker.  I’m not one of those people, usually south of the border, who says, “Have I ever smoked?  I mean, I tried it once in college.”

Because I tried it, tried it again, and then continued to try it, as the mood struck.

But I remember smoking with a friend of mine on the way up to a cottage, and something just didn’t feel right.  That night, I was sick as a dog, and I ended up laying on the floor all weekend.

When we left the cottage, I said, “I’m never smoking again.  Ever.”

And I never did.  It was as simple as that.

I was surprised when the federal government legalized marijuana.

I was always in favour of decriminalization, but legalization seemed like a quantum leap!

I thought Stephen Harper’s mandatory minimum sentences for marijuana-related offences were appalling.  Imagine a 16-year-old kid wanting to smoke a five-piece with his girlfriend in the basement of his parents’ house, getting a mandatory sentence?

But legalization to the point of the government selling it?  That’s from one to zero pretty fast.  And the worst part: they’re not even good at it!

You know how I feel about government control.  I’d like to think that the government making billions of dollars from marijuana sales would lower taxes, increase public services, or both.  But I’m not convinced that we’ll feel the effects of this financial windfall.  It’s funny how the money always seems to vanish.

So here I am, at age 39, with a very different perspective.

When I was younger, I didn’t care about anything, but I didn’t know much either.  I thought, “What’s the harm?”

Everybody has an opinion on marijuana, and they stretch from one end of the spectrum to the other.

Even writing this blog post, I figured that some people would think, “Oh my god, he’s smoked marijuana before!  I would never trust him to help me buy or sell a condo!” and then others would think, “Oh my god, he’s critiquing legalization!  I can’t believe this asshole!”

Damned if you do, damned if you don’t, right?

I had no issue with the legalization of marijuana, but rather I opposed (you guessed it) the government’s involvement in selling it.  I also didn’t trust that the government had any idea what they were doing, and so far, I think I can pat myself on the back and say that I was dead-right in that regard.

I never felt that the government, who, to be perfectly honest, used legalization to help win the 2015 federal election, was ready to deal with the aftermath.

The legalization process has been…….interesting.  To say the least.

I still don’t really understand how this “legal” marijuana market is supposed to work, other than (sorry to be cynical) to know that the government is going to use it as a cash clow.

There was an article in BlogTO back in the Spring that described the problem with “illegal” and “legal” weed shops:

“Toronto Can’t Just Get Rid Of Illegal Cannabis Stores”
Lauren O’Neill
April, 2019

While we’ve read no shortage of opinion pieces on the legalization of marijuana nationwide, this is one of the most Toronto-specific pieces I’ve read, while taking all of the various laws into the equation, many of which are borderline contradictory, and then examining how pot is actually being sold to consumers.

Marijuana legislation is federal, as are the criminal offences that go along with it.

But the province of Ontario oversees licensing of storefronts.

And here in Toronto, the “legal” and “illegal” stores look exactly the same.

From the article:

How much would it suck to go through all the trouble of opening a legal weed store, only to have dozens of people do the exact same thing without paying for permits, inspections or meeting any sort of government regulations?

How much would it suck to then watch these people not only get away with their illegal operations, but do so while luring your customers away with cheaper prices?

Probably as much as it would suck to sink years of your life into building a retail cannabis business and then learning that only 25 of such stores could exist in all of Ontario — and that the owners of those stores would be chosen at random.

It’s been nearly one month since Doug Ford’s PC government allowed the first wave of brick and mortar retail cannabis stores to open across Ontario. Three have launched so far in Toronto, where five licenses were issued in total, but many consumers aren’t pleased with consistently long lines and higher (than pre-legalization) prices.

So, like the rest of Canada, Toronto continues to buy black market weed.

Roughly 20 unlicensed dispensary storefronts are still up and running across the city as of April 25, in addition to more than 100 illegal marijuana delivery services.

You can find them all on WeedMaps, a popular online cannabis community that’s been listing these types of businesses for adult consumers in North America since 2008.

It’s not that police and bylaw enforcement officers can’t find these illicit dispensaries — I mean, operators are advertising their locations and menus online for all to see.

The problem is that no level of government can (or will) shut them down for very long.

Bookmark the article and read it later if you don’t have time.

It’s fascinating, and personally I would love to see a follow-up.

How does this all connect with real estate, you might ask?

Well, is it illegal to smoke marijuana in your condo?

Good question.  Thanks, I asked it…

Is it illegal to smoke marijuana in your condo if you’re an owner?  What about if you’re a renter?

Is it illegal to smoke marijuana on the condo balcony?  What about in the courtyard?

To be perfectly honest, there is just as much confusion around marijuana rules in condominiums there are around legal/illegal weed shops, and that’s saying something.

Here’s an email I received from a client the other day:

Hey Dave:

We’ve been in the condo now for just over a month and it’s awesome!  Thanks again.  It was worth the wait.

One question I have for you is about pot rules in the condo.

We got an email from property management saying that weed was smelled in our unit on August 30th and then there were attachements about rules in the condo (I’ve attached to this email).  So what does that mean? That weed was smelled in our unit? Was somebody in our unit, like can they enter the condo and look around? Did somebody narc on us? Somebody that lives on the floor maybe?

How come people can smoke cigs on the balcony but we can’t smoke weed?  How is somebody going to know?

We’ve only ever rented before and have no clue how this works.

Also is this something the lawyer should have told us about? I assume these docs were reviewed by him?

Big thanks!

This makes me miss living in a condo.

It also makes me not miss living in a condo.

To the first point: I always liked a good battle where I deemed the condo board and/or property manager were overstepping.

To the second point: God, I hate condo boards.

I would like to think that I know everything about real estate in Toronto, but on this matter, I do not.

In my honest opinion, I can see this matter going to the Supreme Court of Canada one day, because nobody is going to agree on the exact intersection between human rights, federal and provincial laws, and the mandates of a private condominium.

I told my client that this isn’t a simple matter, and there’s no easy answer.  Years ago, I might have just said, “Screw it, smoke away.  It’s your goddam place.”  But this is going to be such a battle, and we’re only just beginning.

A condominium corporation is a private corporation, not public, and the corporation is free to make rules as they see fit.

Section 58, specifically of the Condominium Act, allows condo Board to amend rules pertaining to the use of common elements t promote the safety of owners.

It’s through this specific section of the Condominium Act that condominiums are banning residents from smoking marijuana on condominium balconies, as well as banning them from growing weed in the units – both of which are rights enjoyed by Canadians under federal legislation.

So who is right, who is wrong?

In September of 2018, my beloved Auntie, who shall remain nameless, emailed me about this.

Auntie is a product of the 1960’s, and now as she approaches her 70th birthday, and has put in her time with society, the workforce, kids, and the like, she is all about dat ganja.

Auntie loves a good cush weed.

And who’s to blame her?

Really – who in the world is to blame her?

If she wants to toke on her balcony, stare at the city from high up above, and space out for a few minutes, or a few hours, who is going to blame her?

Not the federal government, since weed is legal.

But what about her condo board, who sent notices out to residents saying that smoking marijuana on balconies was banned?

Yes, this happened.  And although there was an “out” so to speak, Auntie didn’t like that either.

The condo board took yet another step over the line, as some would argue, by suggesting that existing residents could have their marijuana smoking “grandfathered in” by providing a note from a doctor about medical cannabis.

“Not their business about my medical history, I say,” wrote Auntie last fall.  “The cooking and perfume smells are worse imho.”

I tend to agree that for a condominium corporation, via the condo board, to ask residents for notes from doctors is mothering them.  It’s none of their business, but at the same time, if private corporations enjoy the rights afforded to them by acts such as the Condominium Act of 1998, then perhaps they can ask residents for doctors notes.

And yet it just doesn’t sound right.

Here’s how the rule looks on paper:

I have to admit, I’m completely out of my depth here.

I’m not a lawyer, but I think even the most brilliant legal minds in our city will have a hard time explaining this with any degree of certainty.

Even the last point – forcing landlords to include clauses in their leases, banning the smoking of marijuana is questionable.

Now how about this: last week, another client of mine received a notice from his condominium’s property manager telling him that his tenant is smoking weed on the balcony, and directed the owner to stop the tenant.

Have a look:

Something about this doesn’t sit well with me.

The tenant was observed on September 1st and September 3rd smoking cannabis.

Who is observing?

To use the word my client above used in her email, who’s the narc?

This email also referenced a “first notice,” suggesting that property management is counting, and insinuating that a second notice and third notice might trigger a further course of action.

At the end of the day, I see all of this going to court.  That’s the only place where this can be settled.

Occupying the moral high ground is not a new phenomenon, especially when it comes to condo boards.  But the one area where this ceases to be about morals and can be claimed as the true duty of a condominium board is with respect to “protecting” the residents.  If marijuana smoke and smell is deemed a disruption, or in any way affects the right to quiet enjoyment, then the condo corporation has a leg to stand on.

Perfume and cooking smells might be worse smells, to some.

So again, this is heading to court.  To the highest court, in time, I do believe.

I’ll let the legal experts, those actual, and self-described, to weigh in…