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BCFSA’s information provides clear, concise, easy-to-read explanations of the requirements for real estate professionals under the Real Estate Services Act (“RESA”), Real Estate Services Regulation (“Regulation”), Real Estate Services Rules (“Rules”), and other applicable legislation.
This information is intended for use by real estate professionals, to support their understanding of the standards they must meet in the delivery of real estate services.
The Cannabis Act, and the Access to Cannabis for Medical Purposes Regulations (“ACMPR”), are the two primary pieces of federal legislation that govern cannabis cultivation, use, and distribution in Canada. Key points in the legislation speak to the maximum number of plants that can be grown in a residential dwelling (four) and set 18 as the minimum age for cannabis consumptions. It must be remembered, however, that those with medical cannabis licenses which are still valid may be bound by different rules. It is important to refer to the government website for how those rules may impact you.
Provinces and municipalities are able to enact their own legislation to further restrict the minimum age, but are not able to prohibit outright cannabis use, cultivation, or, in the case of a commercial enterprise, cannabis sales (beyond some licensing/permitting restrictions).Learn more on the Government of Canada website
(a) Governing Agencies Sharing Responsibility for Non-medical Cannabis
- Responsibility for non-medical cannabis enforcement in British Columbia is shared among:
- Cannabis Legalization and Regulation Secretariat.
- Liquor & Cannabis Regulation Branch.
- BC Liquor Distribution Branch.
- B.C. cannabis retailers.
- Community Safety Unit.
(b) Cannabis Control and Licensing Act (“CCLA”)
General rules for possession and cultivation of cannabis in B.C. include:
- At least one adult (as defined in legislation) must reside in the property;
- No part of the home may be licensed under the Community Care and Assisted Living Act to provide care programs prescribed by the Child Care Licensing Regulation;
- No more than four plants may be grown at any time. This is true even if there is more than one adult residing in the property who wishes to grow cannabis;
- No adult may grow cannabis at more than one dwelling;
- Any cannabis plants being grown inside or outside of the home must not be visible from a public place by any individual who is unaided other than perhaps wearing glasses for vision correction;
- While medical licences allow people to grow more than four plants in a home, provincial legislation regarding non-medical outlines that if another adult resides in the home, the total number of plants permitted is the sum of the medical plants and a maximum of four recreational plants.
While RESA does not include any specific provision or Rule regarding cannabis growth or consumption, several of the Real Estate Services Rules can be applied to the legalization of cannabis.
(a) Duties Owed to Clients
All duties and obligations owed to clients under the Real Estate Services Rules stem from the requirement that everything you do in the provision of real estate services be in the best interest of your client. When working with buyers, a fundamental way of ensuring your client’s interests are being met is through the requirement to discover relevant facts about the property that your client may be interested in purchasing or leasing.
If you are aware of your client’s aversion to homes where cigarettes or cannabis have been smoked, or if your client has a general aversion to cannabis completely, you must ensure you attempt to determine if cannabis has been grown or consumed on the property.Learn more about Duties to Clients
(b) Material Latent Defects
Growing cannabis in a residential property can create a material latent defect if growing cannabis renders the property:
- Dangerous or potentially dangerous to the occupants;
- Unfit for habitation;
- Unfit for the purpose for which your client is acquiring it; or
- Causes a defect that would involve great expense to remedy.
This may include poor ventilation leading to mold and mildew or unpermitted electrical work that runs the hydroponic system where the plants are being grown.
Legal growth of non-medical cannabis, however, generally does not in and of itself constitute a material latent defect.
If you represent a seller and a material latent defect is identified, such as a large scale grow operation or moisture, mildew or non-permitted alterations to the property, it must be disclosed. If you are unsure whether conditions present in the property rise to the level of a material latent defect, you must advise your client to seek legal advice.
(c) Professional Misconduct
RESA states that you can commit professional misconduct if you:
- Breach the Act, Regulation or Rules;
- Breach a restriction or condition on your licence;
- Do anything that is considered wrongful taking or deceptive dealing;
- Demonstrate incompetence in providing real estate services;
- Fail or refuse to cooperate with an investigation under the Act;
- Fail to comply with an order of BCFSA, a discipline committee or the superintendent; or
- Make false or misleading statements in a document required or authorized to be produced or submitted under the Act.
An example of where this might occur would be following unlawful instructions of a client such as being asked to provide false or misleading information when asked about cannabis growth on a property, or failing to disclose to your buyer information you have about former cannabis growth on the property if you know that could impact their decision to move forward with a transaction.
The RTA has been updated to include provisions for dealing with the cannabis legislation. The RTA states that if a tenancy agreement has been entered into between your client and a tenant which includes a term restricting or limiting the smoking of tobacco, and does not include a term that expressly permits smoking cannabis, it is deemed to include a term that restricts or limits the smoking of cannabis without any amendment needing to be made. Vaporizing, however, is not prohibited by this legislation.
Any tenancy agreement entered into before the legalization of cannabis is also deemed to include a term that prohibits the growing of cannabis on the residential property unless on the day before the legislation changed:
- The tenant is growing in or on the residential property one or more cannabis plants that are medical cannabis;
- Growing the plants is not contrary to a term of the existing tenancy agreement; and
- The tenant is authorized under applicable federal law to grow the plants in or on the residential property and the tenant is in compliance with the requirements under that law with respect to the medical cannabis.