Be careful what you ask for

While we are 100% behind the Realtors Trade Association’s view that a public registry for grow-ops should be established and be publicly accessible, of the five points the OREA report asks for.

We feel that these proposals are sensible and fully implemented should be able to help protect consumers, but we feel that the solution needs far wider scrutiny as to the downstream effects of the proposals and align this with OREA’s public view on other issues that are of public health concern.

In summary, the OREA press release and the OREA “protection plan” asks for these five changes to Ontario law:

  • Changing the building code to designate illegal drug operations as unsafe buildings requiring remediation.
  • Requiring municipal inspections of designated unsafe buildings.
  • Registering municipal work orders for remediation on the Ontario land title system.
  • Training home inspectors to spot damage caused by grow-ops.
  • Reducing the allowable number of personal plants from four to one in multi-unit dwellings smaller than 1,000 square feet.

So let’s take these recommendations one step at a time.

Changing the building code to designate illegal drug operations as unsafe buildings requiring remediation.

We do not believe a radical change is needed in the building code as the regulations cater for the eventuality of a home that needs remediation because of any damage, regardless of whether it is a grow-op, other clandestine drug lab or from general renovations.

Indeed that act states that it is the role of a building owner to ensure that the building or part of the building is maintained, repaired, evaluated and to ensure documents, records and other information about the building are kept and provided in accordance with the Act and the building code regulations.

Further down the Ontario Building code Act, the issue of unsafe buildings is clearly identified.  Under the section “Unsafe Buildings” the act states “An inspector may enter upon land and into buildings at any reasonable time without a warrant for the purpose of inspecting a building to determine, whether the building is unsafe“.   

Having performed such an inspection, it goes on to say “An inspector who finds that a building is unsafe may make an order setting out the reasons why the building is unsafe and the remedial steps necessary to render the building safe and may require the order to be carried out within the time specified in the order.

Reverting back to the top of this section of the act it refers to this prior order by saying “An inspector may enter upon land and into buildings at any reasonable time without a warrant for the purpose of inspecting a building to determine whether” such order “has been complied with.

The changing of the term “may” to “shall” is required in the clauses to take the conditional opt-out decision process from the Inspector and the Municipality.  

Requiring municipal inspections of designated unsafe buildings.

The issue is not with the Act, it is with the application of the Act.  The Act already leaves it up to the Municipalities to enforce provisions in the act.   Indeed the Act states “The council of each municipality shall appoint a chief building official and such inspectors as are necessary for the enforcement of this Act in the areas in which the municipality has jurisdiction”  

Having transferred responsibility to the municipalities for the appointment of the inspectors, the application of those parts of the act that are required of the inspectors falls to the Municipalities already.  The issue is that the Municipalities do not have sufficient Inspectors to inspect new-builds let alone existing homes that may have other concerns that the Act applies to.   There are, however, sufficient Home Inspectors to cover this scenario.

The problem here is that Municipalities do not see Home Inspectors as adequate for the task of inspecting for safety violations.  Until the Home Inspection Act, 2017 is proclaimed, as a profession Home Inspectors have no real legal standing to support the needs of the Municipalities.

This is why it is important for the Home Inspection Act, 2017 to be proclaimed by the incoming government regardless of their colour.

Municipal Inspections are already required for designated unsafe buildings.  no change in this respect s required.  Giving the Municipalities the resources and the ability to enforce this provision by allowing Home Inspectors to be called by the Chief Building Official to perform the inspection on their behalf is what is needed.

In addition, under the Municipal Act, 2001, “If the clerk of a local municipality is notified in writing by a police force that a building located on land in the local municipality contained a marijuana grow operation, the local municipality shall ensure that an inspection of the building is conducted within a reasonable time after the clerk has been notified” and the Municipal Act, 2001 goes on to say “An inspection may be conducted by, a by-law enforcement officer of any municipality or of any local board of any municipality; or an officer, employee or agent of any municipality or of any local board of any municipality whose responsibilities include the enforcement of a by-law, an Act or a regulation under an Act.

Properly trained, licensed Home Inspectors could be utilised as such agents.

Registering municipal work orders for remediation on the Ontario land title system.

Again, OREA does not appear to be cognizant of the provisions of the Ontario Building Code Act.   Anyone perusing the Act can see that it states that any order for remediation MUST be served upon the registered owner and anyone in possession of the building.  It goes on to say that, at the discretion of the Municipal Chief Building Official, the order shall be made available to any other such persons affected by the order.  This presumably would include anyone acting on behalf of the owners trying to sell the home (i.e. The Realtor) or anyone acting on behalf of someone trying to buy the Home (i.e. The Realtor or the Home Inspector).

The Act goes on to state that (optionally) any order should be made public and registered in the proper land registry office.

Unfortunately, many jurisdictions and even the Police themselves choose to hide behind the Privacy Act or PIPEDA to stop from releasing such information (as well as information about building permits etc.  but that’s a whole different ball-game)

Again the required change to the Act would not be complex, but the impact would be tremendous.  Changing the words from “may”  to “shall” in multiple locations will prevent the capability of an opt-out by the Municipal Governments.

Here’s where it gets interesting.  In the run-up to the enactment of the Home Inspection Act, OREA representatives admitted that radon infiltration into a home was a serious health concern, but that testing should be left up to the buyer to perform after the home was purchased.  This seems at odds with the OREA position on Grow-ops.  The Building Code Act clearly states what would be considered an unsafe building:

A building is unsafe if the building is,

(a) structurally inadequate or faulty for the purpose for which it is used; or

(b) in a condition that could be hazardous to the health or safety of persons in the normal use of the building, persons outside the building or persons whose access to the building has not been reasonably prevented

As a proponent for the testing of all homes for excessive radon, we find ourselves at odds with OREA.  OntarioACHI is pushing for radon inspections to be performed as part of the sale process of Homes, to establish if the Home is safe for the incoming buyers, or whether there is a likelihood that they will incur costs to remedy the home after purchase.   we can’t see how OREA considers that there might be two types of “unsafe” homes, except perhaps that the testing for radon may indeed prove that the dangers are far more pervasive than at first thought and that sales might be delayed because of the sampling.  Neither findings are, in our opinion a reason to think one “unsafe” is less “unsafe” than another “unsafe”.  Obviously, a home that has been a grow-op may have structural concerns in addition to the safety concerns, and these can cause blow-back to Realtors involved in the sale process.  Maybe that’s where the difference lies?

OntarioACHI supports the OREA stance on inspection and reporting of unsafe homes – the difference is that we believe ALL unsafe homes should be inspected and reported on, not just the ones that might leave Realtors liable for.

Training home inspectors to spot damage caused by grow-ops.

We are fully supportive of the recommendation that Home Inspectors are trained to identify grow-ops.  Mandating this alone will not protect consumers while a Home Inspection remains an elective service.

Many Home Inspectors have undergone training to not only “spot damage caused by grow-ops” but also to identify the existence of grow-ops and clandestine drug labs as well as a host of other concerns, including mould, indoor air quality and radon testing.

We are absolutely on-board that training is given to Inspector to ensure they are able to perform these inspection services professionally.  Indeed many of the Inspectors from OntarioACHI have undergone specific training for Indoor Air Quality, Radon measurement and clandestine drug lab identification.  But when Realtor maintain the ability to work in the best interests of their clients by saying things like “If you have a Home Inspection, you will likely lose the house” any such mandatory training is meaningless.  Being able to identify a clandestine drug-lab is only effective if the home is inspected in the first place.

In addition to the five points brought forward by the Realtors, we would add a sixth.  That OREA removes all references from its documents of Sale and Purchase of the provision for clients to waive the Home Inspection. 

Requiring all homes to be inspected as part of the Sale & Purchase process will level the playing field.  No advantage would be given to those foolish individuals that are persuaded to purchase a home without an inspection.  After all, we are all talking about protecting consumers, aren’t we?

Reducing the allowable number of personal plants from four to one in multi-unit dwellings smaller than 1,000 square feet.

This is probably the one recommendation OntarioACHI is in complete disagreement with.  The ability to restrict the number of plants growing in a home is not, in our opinion, not an effective means to eradicate high humidity, which is the cause of most of the damage from grow-ops.  We do not believe legalisation of cannabis will increase the number of legally grown plants and proper education for those who do want to grow Cannabis legally would be a better option.

The limit on the number of cannabis plants was designed to prevent illegal grow-ops and growth of Cannabis for the harvesting of resultant THC to sell.   The reason why illegal grow-ops can be so devastating to the building is that they are not properly ventilated.  The reason for this is the smell that is also produced by transpiration in the Cannabis plant is very distinctive and ventilating it to the exterior can alert the authorities to a clandestine grow-op. 

People who want to maintain illegal grow-ops, will not care about the regulations of how many plants to grow in as home any more than they already care about the legality or illegality of doing so in the first place. 

As with all indoor plants, the increase in humidity in the atmosphere comes from transpiration and evaporation.  Transpiration is the process of the uptake of water from the growing medium into the plant through the roots, migration through the plant to the leaves, flowers and fruit and out of the stomata to the leaves.  Evaporation occurs both from the soil and the surface of the leaves, with the majority of the evaporation coming directly from the soil.  It has also been shown that the relative humidity has little effect on the actual growth of a plant, but that the growth of any plant has an effect on the %RH levels. (Cite: Wallace-Stout).  

Restricting the number of cannabis plants to four or less for smaller properties does not take into account that humidity is generated from many sources, including cooking, bathing, showering and other plants.   It is the ventilation, insulation and heating of the properties that are paramount to stabilising the Humidity levels in a home.

Regulating the number of Cannabis plants will not stop people growing other plants that add to the humidity of the home as much and sometimes even more than cannabis. Educating people that if they want to run their home as a greenhouse for pot plants of any sort, means they need to be aware of the humidity levels that are created by this choice, and how to properly deal with it.

 Proper insulation, ventilation and heating/cooling of a home with four (or ten) plants of any nature will help maintain the correct %RH in a home.  Proper education of the public and it appears the people at OREA, would go a long way to ensuring homes are not subject to damage from mould caused by high levels of humidity.

The ramifications of implementing the changes required by OREA (and us)

Let’s take them in order of importance with respect to the protection of consumers.

  1. Preventing Realtors from dissuading consumers from having (or allowing) Home Inspections that check for health hazards (including Grow-ops, clandestine drug labs and high levels of radon)
    Sure, this is self-serving, but it serves consumers more!
  2. Training home inspectors to spot damage caused by grow-ops.
    OntarioACHI is all for this.  We are already training our Inspectors in other Indoor Air Quality techniques.  Inspectors who hold the OntarioACHI Certified Indoor Air Quality Assessor (OCIAQA) designation has been instructed in identifying causes of mould and other indoor air contaminants.  Grow-ops are only a part of that training.  But let’s not stop there, let’s include radon assessments as part of the Real-Estate transaction process.  After all, Grow-ops only affect a minimal number of properties, and while the costs to remedy might be extensive, the real cost of high-radon in the home is higher.  Around 850 Ontarians succumb to Lung Cancer EVERY YEAR because of high levels of radon in the home.  Health-Canada and the Ontario Lung Association both recognise that at least 10% of homes are affected by high levels of radon in Ontario. OntarioACHI Certified Radon Measurement Inspectors (OCRMI), in addition to C-NRPP and IAC2-Radon Inspectors, are all qualified to perform short-term real-estate measurements. The sampling process is simple, the fix is fairly inexpensive. 
    The cost of not doing either is huge.
  3. Changing the building code to designate illegal drug operations as unsafe buildings requiring remediation.
    This is already in place in the Act.  The change that is needed is to alter the terms “may” to either “shall” or “must” in the relevant locations to prevent discretional opt-out by those tasked with enforcing the Act.
  4. Registering municipal work orders for remediation on the Ontario land title system.
    Again, the provision is in the Act.  Changing the terms “may” to either “shall” or “must” in the relevant locations will again prevent discretional opt-out.  Forcing the information to be on a publicly accessible register will stop authorities incorrectly hiding behind privacy regulations.
  5. Requiring municipal inspections of designated unsafe buildings.
    This is in the Act and no change is needed.  Giving the Municipalities the resources to do this is what is required.
  6. Reducing the allowable number of personal plants from four to one in multi-unit dwellings smaller than 1,000 square feet
    Change where change is needed.  This is, in our view, a stupid proposal and completely un-enforceable and would lead to a string of human-rights violation actions across the Province (and Country)

Summary

  • We fully support the OREA position on inspecting homes to ensure they do not pose a hazard, either health or financial, to potential buyers. 
  • We do not believe the inspection should be limited to grow-ops. 
  • We also don’t believe such inspection should be delayed, or forced by, legalisation of Cannabis.
  • The outcome of such inspection could lead to the temporary or long-term stigmatisation of homes or indeed complete areas, much like has been caused by UFFI, PEX and Asbestos. 

Any inspection that protects consumers is fully supported and endorsed by OntarioACHI.    But one needs to be careful what one asks for.

The changes you are asking for may not result in the outcome you are expecting!