Landlords Must Be Vigilant When Selecting New Tenants:
Disturbing News Regarding Grow Operations
By Tonya Moreton (Excerpts reprinted with permission from ROMA BC, Top Storey and Al Kemp)
Supreme Court Overturns Eviction of Marijuana Grow Operators
Surrey Bylaw Will Fine Landlords for Tenant’s Marijuana Grow Operations
Ontario Government Allows Eviction of Illegal Operators in 10 days
Did you see these headlines in early July? If you didn’t then you had better read on as there are some serious situations occurring in other provinces that could have an impact on the rental housing industry here in Manitoba in the future if left unchecked.
Let me sum it up for you: the BC supreme court overturned the eviction of a grow operator because "illegal activities do not automatically constitute a basis for termination." The City of Surrey passed a By-law proposing to fine rental owners up to $5000.00 plus policing costs if they fail to evict grow operators, while Ontario decided to take a hard-line approach with tenants that are engaging in illegal activities.
Supreme Court Overturns Eviction
The BC Supreme court overturned a decision by a Residential Tenancy Office Arbitrator which upheld a landlord’s attempt to evict a tenant for growing marijuana. The Judge ruled that no "serious" damage had been caused, so the tenant could remain. In the concluding paragraph of her Reasons for Judgement, Justice Lynn Smith stated:
"...tenants are not at liberty to grow marijuana in their rented premises without fear of consequences from their landlords.
As the arbitrator stated in this case, when a tenant is carrying on an illegal activity that involves risk, the landlord should not have to wait for actual damage to occur before terminating the tenancy.
Marijuana grow operations are illegal activities, many of which will carry risk. Risks may flow from wiring changes, excess moisture, and other physical factors which affect the premises. Risks may also flow from the very existence of an illegal activity in certain circumstances, if it is substantial and may be associated with violence, or even with vigorous police enforcement.
All will depend on the facts in each case. However, "illegal activities do not automatically constitute a basis for termination," under s. 36(1)(f) of the Residential Tenancy Act, nor does ‘some risk’ of any magnitude from trivial to extreme. The legislation requires a serious impairment of the landlord’s interest…. I have found that the arbitrator did not apply that test and it is for that reason that the order is quashed."
The Judge’s conclusion
(was) reinforced by a statement on the Residential Tenancy Office’s website which reads, "If a tenant’s illegal activity is causing no damage to the landlord or tenants and is not likely to cause any risk or damage, the landlord may not be successful in ending the tenancy on this ground."In Manitoba, property owners/managers face the same problem of eviction of person (s) involved in illegal activity as our Act reads much the same in s. 96(1) (a, b, c) and s. 96(3)(a, b, c). There must be some further contravention of the Act, as a person cannot be evicted solely on the basis of suspected illegal activity occurring in their rental unit. And then an eviction could take as long as 6-8 weeks to occur.
Surrey By-law Will Fine Landlords
The City of Surrey passed a By-law in June proving for landlords to be fined up to a maximum of $5000.00, plus be forced to pay up to $2500.00 in policing costs if a marijuana grow operation is discovered in their property.
The intent of the by-law is to protect the community from unsightly, hazardous blighting conditions that contribute to the deterioration of neighborhoods and to prevent the manufacture of noxious or offensive trade in controlled substances in buildings and structures.
Where an offence is a continuing offence, each day shall constitute a separate and distinct offence.
In the event that the Person who has failed to comply fails to pay the costs of compliance, the costs shall be added to the taxes payable on the taxes as arrears.
At present and to the knowledge to the PPMA we do not have to fear the implementation of such potentially harmful legislation. However it is still our responsibility as community stewards to ensure that these types of illegal activities are discouraged from taking hold in our neighborhoods and communities if we are to keep such legislation at bay.
Ontario Allows Eviction in 10 Days
Ontario, whose residential tenancy legislation is much more "tenant friendly" than BC’s
[or our own] (the Ontario law is called the Tenant Protection Act), recently passed a regulation providing that tenants who are given an eviction notice for illegal drug activity will be required to move in 10 days, down from the previous 20 days.So what can a property owner/manager in Manitoba do to protect themselves from this type of situation? There are some clear warning signs to watch for, as well as some guidelines to follow before you accept a potential tenant.
Protect your residents, your investment and yourself - be vigilant and act quickly if you suspect a problem.