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. As such, landlords may not cancel the 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.
When it comes to smoking on outside balconies or where common gardens are shared, if the body corporate has rules that state no 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 the balcony.
Breach of lease agreement
The only time that smoking cannabis is illegal, is 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. In this case, the tenant needs to receive three consecutive written warnings to stop smoking in the unit.
Once the tenant has received three consecutive written warnings to stop smoking, the lease agreement can be cancelled after the third written warning, giving the tenant notice to vacate. If the TPN Residential Lease Agreement has been used, the tenant is given 20 business days’ notice to vacate.
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