Is it legal to smoke cannabis in a rental property?

In September 2018, the Constitutional Court decriminalised the possession, use or cultivation of cannabis by adults for personal consumption, in private. This was decided in ‘Minister of Justice and Constitutional Development v Prince [2018] ZACC 30′ or the ‘Prince case’.

Effectively what this means is that any person is now entitled to grow, possess, or smoke cannabis in the privacy of their own property. This protection does extend to tenants renting a property.

Plenty of landlords are referring queries to the TPN legal team as more instances arise where tenants are smoking cannabis in their rental properties, or neighbouring units are complaining that their tenants are smoking cannabis.

Smoking now includes cannabis.

Due to the Prince case, the tenant is not performing any illegal activity provided that the unit they are renting permits ‘smoking’ in the unit. So, if you have stipulated that the property is a smoking unit and your tenant is smoking cannabis on the property, the landlord may not cancel the lease agreement as the tenants are not in breach of the agreement.

As a result, it is vital to ensure that your lease agreement clearly stipulates whether your rental property is designated as a smoking or a non-smoking unit. For example, the Residential LeasePack specifically provides a section of the schedule of the agreement which must be completed to avoid any ambiguity over whether the tenant is allowed to smoke in the property or not.

When does smoking constitute a breach of the lease agreement?

If the tenant is smoking in a non-smoking unit, this constitutes a breach of the lease agreement in the same way that smoking cigarettes would. Should the tenant receive three consecutive written warnings to cease such smoking, on the third written warning the lease agreement may be cancelled by giving the tenant 20 business days’ notice to vacate in terms of the TPN Residential Lease Agreement.

The provisions of the TPN lease goes further to ensure that if the unit is a smoking unit, then the tenant must take necessary precautions that the smoking will not damage any portion of the property. It further holds the tenant liable to restore the property to the pre-smoking condition at the expiry of the agreement. If the smoking has damaged the property i.e., the walls are discoloured, or the carpets smell of cannabis or cigarette smoke, then the tenant is liable for these costs, which can be deducted from the deposit.

Can tenants smoke in common areas of a complex?

When it comes to outside balconies and where common gardens are shared, how is this regulated in terms of smoking? The ‘Prince case’ does not stipulate specific areas further than ‘personal property’. So, if the body corporate has rules that state no smoking (any kind of smoking) in common areas, then these rules would still apply. If the balcony falls within the exclusive use area of the tenant, then they may smoke on their balconies.

Make sure you are protecting your property from every potential legal issue possible. Download the TPN LeasePack here.

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