Tribunal administratif du logement
Tuesday, 23 January, 2018
The coming into force of the legalization of cannabis in Canada, set for July 1, 2018, raises a number of questions.
The Régie du logement is taking this opportunity to review some of the rules concerning the use of tobacco in rental residential buildings, since those rules could also apply to the consumption of cannabis, once its use is legalized.
Clause in the lease
Lessors may include certain specific clauses in the lease or occupancy rules that have to be given to a lessee before the lease is concluded. The lease or occupancy rules may, among other things, prohibit the lessee from smoking in his or her dwelling. The jurisprudence has established the lessor's right to include such a clause in the lease or the occupancy rules. Therefore, the clause is valid and the lessee must comply with it.
The guidelines of the new bill concerning cannabis are not yet clearly defined and obviously, there is still no jurisprudence on the matter. However, by analogy, it is conceivable that, as is the case for tobacco, a clause prohibiting cannabis from being smoked in a dwelling would also be considered valid once the legalization process is completed.
Modifying a condition of the lease
A lessor who wishes to add a non-smoking clause to a current lease can do so by following the procedure already provided by law for the clause to be effective on renewal of the lease. To this end, the lessor must send the lessee a written notice1 within the legal time periods.
Table of Notice Periods
Type of lease
Lease of 12 months or more
3 to 6 months before the end of the lease
Lease of less than 12 months
1 to 2 months before the end of the lease
Lease with an indeterminate term
1 to 2 months before the proposed modification
Lease for a room
10 to 20 days before the end of a lease with a fixed term or before a proposed modification to a lease with an indeterminate term
The lessee has one month from the date of receipt of the lessor's notice to indicate whether the proposed modification is accepted or refused. If the lessee does not reply within that time period, the modification is considered to have been accepted.
If the lessee refuses the modification, he or she can decide not to renew the lease and to leave the dwelling at the end of the lease. In this case, the lessor could then add a non-smoking clause to the new lessee's lease.
The lessee can refuse the proposed modifications, but nonetheless renew the lease and stay in the dwelling. In this case, the lessor has one month from receipt of the lessee's reply to file an application for modification of the lease with the Régie du logement, which will rule on the application. If the lessor does not file an application within the period provided for by law, the lease will be renewed of right, under the same conditions as before.
In the past, the tribunal has sometimes been reluctant, during the term of a lease, to add a non-smoking clause. However, a clause prohibiting the smoking of cannabis, once it has been legalized, has yet to be submitted to the consideration of the tribunal.
1. Namely, the Notice of rent increase and modification of another condition of the lease , a model of which is available on the website of the Régie du logement.