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Can you evict a legal pot-smoking tenant?

By admin | December 6, 2011

Can you evict a legal pot-smoking tenant?

Young marijuana plants at a medical marijuana growing operation.
Ted S. Warren/AP

By Mark Weisleder | Fri Dec 02 2011

Several readers have asked whether you can evict a tenant who is smoking marijuana for medicinal purposes, or if you can refuse to rent to someone who tells you that they have a license to grow marijuana for medicinal purposes.

A few B.C. court cases in B.C. shed some light on the issue. The short answer is that it depends. Bill Spelcham owned a condo which he rented to Ryan Buchanan who had a license to grow marijuana for medicinal purposes. Spelcham visited the condo and noticed mould and mildew because of the high moisture in the unit. He evicted Buchanan in 2007, arguing that the marijuana growing damaged his unit, endangered the other tenants and placed him at significant risk.

Buchanan filed a Human Rights complaint claiming he was being discriminated against because of his illness. At the hearing, Spelcham was able to show that it would create a real hardship for him to try and accommodate Buchanan, since there was no solution that either of them could come up with to reduce the danger to the other tenants. The judge agreed with Spelcham and Buchanan was evicted, probably because if you can prove hardship, you usually succeed in defending a claim under the Human Rights Code.

Also read: How tenants can deal with noisy neighbours

In a 2008 case, Vancouver Islander Christina Goluch rented an apartment from the Greater Victoria Housing Society and did not disclose that she smoked marijuana for medicinal purposes. The housing association tried to evict her three years later. She fought the eviction claiming discrimination based on her illness. The court refused the eviction because no damages to the unit were proven.

In a third B.C. case, tenants in a housing complex complained about the constant marijuana smoke coming from the apartment, claiming it caused harm to themselves, their children and visitors. There was also concern that the presence of the plants could damage the building. The judge accepted the evidence of the other tenants and found that Eric Young disturbed the other tenants and could not show how the problem could be solved. Young was evicted.

In Ontario, there have been some interesting related cases on evicting tenants who smoke which can be used as a guide. In the first case, the building had a forced air system, so the smoke from one of the units could not be prevented from entering the other tenants’ units.

Tenants complained and since the smoker would not agree to stop smoking, he was evicted. In another case, a tenant rented a furnished apartment and agreed not to smoke. The landlord found that the tenant smoked and caused $10,000 worth of damages to the furniture, drapes, bedding and carpets. The tenant was evicted and had to pay $10,000 in damages.

So it seems if you can prove that the tenant growing marijuana is bothering the other tenants, damaging the building and/or increasing the landlord’s risk, they will probably be evicted. But if you can come up with a solution to properly ventilate the unit at reasonable cost, to minimize the problem, you may not succeed with the eviction.

We have a similar Human Rights Code in Ontario, so if a tenant presents you with a license to grow marijuana legally in a tenant application, you should first consult with your insurer to determine if this will cause adverse consequences to your insurance policy. You may also wish to review the matter with an electrician and building contractor, to determine whether the growing could cause long term damage to your property. If renting the unit would cause this hardship to the landlord, then in my opinion, you could refuse to rent the unit to the tenant. In all cases, legal advice should be obtained in advance.

To find out the rules about obtaining this license, including how many plants you can grow, go to the Health Canada website at

Mark Weisleder is a lawyer, author and speaker to the real estate industry. Email Mark at

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