Dear Tony: Our strata council is getting a lot of pressure from our owners to adopt a bylaw that prohibits use of marijuana and growing of marijuana plants. Several owners have already complained about the smell of marijuana in the building from several smokers, and we had to eradicate a grow-op back in 2004, costing our strata more than $75,000 in damages that we never recovered.
What our council is struggling with is the question of how far we can go with our bylaws.
Do federal and provincial laws override our ability to control what happens in our building?
Denise M., Parksville
Federal legislation determines what substances can be possessed and consumed, the quantity that individuals can possess, and, if permitted, how it is grown, managed, regulated and taxed.
Each province then has the jurisdiction to determine how distribution will be managed and controlled.
We might also find there are local government bylaws that set specific zonings or regulations for facilities that grow marijuana and how local businesses market and distribute the products.
Strata corporations are essentially private property. You cannot prohibit anyone from consuming marijuana, as it comes in many forms that pose no nuisance to the community.
However, in most strata corporations, the main issue is smoking. Smoke is a serious nuisance in many multi-family buildings, as the smoke often migrates to other strata lots or common property and can contaminate those areas.
Multi-family buildings such as apartments, connected townhouses or high-rise-style buildings are rarely airtight. Any neighbouring smoke or consumption that requires some sort of combustion will migrate to other strata lots.
Your strata corporation is permitted to adopt bylaws that regulate nuisances such as smoking and noise. The Schedule of Standard Bylaws already has a nuisance bylaw that can be enforced. Your strata can adopt a bylaw that simply prohibits all smoking of any substance within strata lots and on any common property.
Those bylaws will continue to be enforceable.
Your strata corporation is not, however, permitted to prohibit or restrict the use of substances or plants that fall under the classification of medical purposes 鈥� even, potentially, if it involves smoking. If an owner or occupant requires the medical use of marijuana, the strata corporation is permitted to request valid documentation to grant the exemption. This is both for the protection of the strata corporation and the related strata lot.
There is an ongoing question for strata councils to consider. Is your smoking or nuisance bylaw enforceable?
Strata corporations and managers are constantly borrowing bylaws from each other and tweaking them to apply to their own needs, but the limitations or changes they are adding to make them acceptable to their owners often render them unenforceable.
Even with enforceable bylaws, strata councils are still failing to follow the basic steps of bylaw enforcement, resulting in long, costly battles between owners and their neighbours.
Spring seminars and workshops are an excellent opportunity for your strata council to refresh its knowledge of bylaw enforcement and application. Seminars will be held on May 8 in Courtenay, May 9 in Nanaimo and May 10 in Victoria. Go to choa.bc.ca for details.
Tony Gioventu is executive director of the Condominium Home Owners Association.
