What the law says about smoking cannabis in a rental property
Tenants can legally use, cultivate for personal consumption and possess cannabis in the property they are renting, says Rowan Terry, legal counsel at TPN Credit Bureau.
Landlords, as a result, may not cancel a lease agreement because the tenant is smoking cannabis on the property for the simple reason that the tenant is not in breach of the agreement.
Terry said in recent years, there have been numerous complaints from both landlords and neighbours that tenants are smoking cannabis in their rental properties.
Issues arise when neighbours complain, and landlords are caught awkwardly in the middle.
“The reality is that the possession, use and cultivation of cannabis for personal consumption, in private, was decriminalised in 2018.”
“This means that anybody is entitled to grow, possess, or smoke cannabis in the privacy of their own property, including tenants renting a property,” Terry said.
Regarding smoking on outside balconies or where common gardens are shared, if the body corporate has rules that state no smoking in common areas – then the rules would still apply.
“If the balcony falls within the exclusive-use area of the tenant, then they may smoke on the balcony.”
Smoking cannabis is illegal only 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,” Terry said.
A tenant, in this case, would need to receive three consecutive written warnings to stop smoking in the unit.
Subsequently, after receiving three consecutive written warnings to stop smoking, the lease agreement can be cancelled after the third and final written warning.
Notice can then be given to the tenant to vacate the premises.
Terry said that it is important that those who rent out properties have lease agreements that are clear and unambiguous, especially regarding smoking.
“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,” Terry said.
“If damage has been caused as a result of smoking – for example, if the walls are discoloured 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,” he added.
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