Canada: Cannabis: Imminent Arrival Of The 90-Day Deadline For Modifying A Residential Lease

The legislation on recreational cannabis, which has been in force since October 17, 2018, has left no one indifferent, especially owners of apartment buildings. The Cannabis Regulation Act (the "Act") deals with such aspects as possession, cultivation, use, sale and promotion of cannabis. The Act prohibits smoking cannabis in several locations, particularly in the common areas of residential buildings comprising two or more dwellings1, but not in the dwellings themselves. This state of affairs is not to the liking of many residential building owners, who would like to prohibit this practice. In order to do so however, they must comply with certain rules governing the modification of a residential lease.

Some lessors have been proactive, and before the Act came into force they modified the conditions of their leases by adding a prohibition on smoking cannabis anywhere inside their buildings. In doing so they gave their tenants a notice of modification of their leases within the periods specified in Article 1942 of the Civil Code of Québec (the "CCQ"). These periods are between three and six months before term for leases with a 12-month term or an indeterminate term, and between 10 and 20 days in the case of the lease of a room.

Since October 17, 2018 any tenant legally of age to consume cannabis who has not received a notice of modification of his or her lease in accordance with the Act thus has the right to smoke cannabis in his or her dwelling.

However, the Act contains transitional provisions2 giving lessors the opportunity to modify the conditions of their residential leases by January 15, 2019, i.e. 90 days after the Act came into force, in order to prohibit their tenants from smoking cannabis in certain places, such as the dwelling itself, balconies, common areas, storage rooms, garages or on the grounds surrounding the building. The lessor must give the tenants a notice of modification specifying the extent of the prohibition.

The tenant may refuse to accept the modification on medical grounds, and must then notify the lessor of the refusal within 30 days of receiving the notice of modification. In such cases the lessor must apply to the rental board, the Régie du logement, within 30 days after receiving the notice of refusal, for a ruling on the modification of the lease. Should the tenant not refuse the modification within the specified period, the prohibition is deemed entered in the lease 30 days after the tenant received the notice of modification. Lessors should therefore be sure to keep a proof of receipt of the notice of modification by the tenant.

If the lessor has not modified the lease in accordance with Article 1942 CCQ, and has missed the target date of January 15, 2019, it may still make such a modification to the lease when it comes up for renewal. The lessor must then send a notice to the tenant within the prescribed period referred to above, and the tenant, also as mentioned above, will have one month following receipt of the notice to refuse the modification.3

If the tenant refuses the modification and does not wish to renew the lease, the lessor may then include the prohibition on cannabis use in the lease of the new tenant. If the current tenant refuses the modification but wishes to renew the lease and remain in the dwelling, the lessor must, within a month of receiving the tenant's response, submit an application to modify the lease to the Régie du logement. If the lessor does not submit such an application to the Régie within the prescribed period, the lease will be renewed by operation of law on the same conditions.4

Finally, a lessor who wants to increase the probability of its application for such a modification being granted by the Régie du logement should ensure that the rules it wants to impose are uniform, such that the prohibition should apply to smoking both cannabis and tobacco.

Footnotes

1 Section 12 (8) of the Act

2 Section 107 of the Act

3 Article 1945 CCQ

4 Article 1947 CCQ

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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