Advice and Opinion Residential

Does your tenant have a right to smoke cannabis on your property?

There have been numerous complaints in recent years from landlords (and neighbours) about tenants smoking cannabis in their rental properties. When neighbours complain, landlords are often caught in the middle so is there anything that they can do to resolve this situation?

According to Rowan Terry, Legal Counsel at TPN Credit Bureau, the possession, use, and cultivation of cannabis for personal consumption, in private, was decriminalized in 2018 meaning that anybody is entitled to grow, possess, and to smoke cannabis in the privacy of their own home, including tenants. Landlords may not cancel the lease agreement because their tenant is smoking cannabis for the simple reason that the tenant is not in breach of the agreement.

When it comes to smoking on balconies outside or where common gardens are shared, if the body corporate has rules that state no smoking in these areas, then these rules would still apply. If the balcony falls within the exclusive-use area of the tenant, then they may smoke on the balcony.

The only time that smoking cannabis is illegal is if the rental unit does not permit smoking. In this instance, smoking cannabis in the rental property would constitute a breach of the lease agreement in the same way that smoking cigarettes would constitute a breach of the agreement. In this case, the tenant needs to receive three consecutive written warnings to stop smoking in the unit.

Once the tenant has received three consecutive written warnings to stop smoking, the lease agreement can be cancelled after the third written warning, giving the tenant notice to vacate.

Lease agreements need to be clear and unambiguous about whether the rental property is designated as a smoking or a non-smoking unit. If the unit is designated as a smoking unit, then the tenant is obliged to ensure that the smoking will not damage any portion of the property. It may also hold the tenant liable to restore the property to the pre-smoking condition at the end of the lease period. If damage has been caused as a result of smoking – for example, if the walls are discolored, or the carpets smell of cannabis or cigarette smoke – then the tenant is liable for the costs which could include repainting, cleaning, or replacing the carpet. These costs can be deducted from the deposit.

The bottom line is that landlords need to be proactive and ensure that they have put adequate measures in place to protect their property from every conceivable threat.