Can My Condo Association Stop An Owner From Smoking Marijuana?

Homeowners who serve on the board of a Condominium Owner's Association ("COA" or "HOA") in an area where it's legal to smoke marijuana for recreational and medical reasons can face tough situations. Some condo owners might express concern about marijuana smoke drifting into their units from neighboring units. They might raise concerns relating to potential health risks associated with the secondhand smoke, or just do not like the odor, or feel it's morally wrong to smoke. Is there anything your COA board can do to stop the drifting smoke?

This issue poses some real challenges for a COA board, among them:

• complying with both state and federal law
• addressing the differences between recreational and medical marijuana, and
• since legal marijuana is relatively new, wading through the uncertainty that conflicting state and federal laws create.

We'll discuss these matters here.

Marijuana Remains Illegal Under Federal Law

It might be tempting for a COA board to wait and see how others handle the problem. Sitting back and waiting might not be the best approach, though. Smoking marijuana is not a fundamental right. In fact, marijuana remains illegal under federal law. (21 U.S.C. 841(c).)

Additionally, secondhand marijuana smoke, like secondhand cigarette smoke, contains carcinogens that some experts worry could have adverse health effects. Interestingly, COA boards have been held liable for not taking action to protect owners from cigarette smoke.

While there is a known direct link between secondhand cigarette smoke and negative health consequences, such a link has not been definitively made with secondhand marijuana smoke. It is nevertheless possible that courts will require COA boards to take action to protect owners and tenants from secondhand marijuana smoke.

Condominium Associations Should Keep Detailed Records of All Complaints Received

As support for any decision it makes, your COA board should maintain a record of all marijuana smoke complaints it receives. At a minimum, keep information such as the date and time of the complaint, the name of the parties involved, and any health concerns expressed by the complainant. Without having a record to support whatever decision it makes, the board's decision might look arbitrary to other owners and, if a lawsuit is filed, the court.

Medical Marijuana and the Fair Housing Act

One question that has yet to be fully answered by the courts is how the Fair Housing Act ("FHA") impacts owners' rights to smoke marijuana in their units. The FHA is a federal law that prohibits discrimination based on, amongst other things, disability, race, and religion. Broadly speaking, in the case of a condominium owner with a disability, a COA might have to make a reasonable accommodation to its rules and policies to provide the person an equal opportunity to use and enjoy the condominium unit. For example, a rule prohibiting owners from having dogs might need to be relaxed for an owner who is depressed and needs a companion pet.

In the context of medical marijuana, a condominium owner might, in theory, claim smoking marijuana treats a disability and that by prohibiting the smoking of marijuana, the COA is violating the FHA. Most commentators believe, however, that since "smoker" is not a protected characteristic under the Fair Housing Act (FHA), and because of the federal illegality of marijuana, no legal claim for an accommodation can yet be made in such a case.

Review the COA's Governing Documents

As the board begins to look for answers, it should carefully review the COA's governing documents. These typically include bylaws, covenants, conditions, and restrictions ("CC&Rs"), and rules and regulations. As you review these, look for any provisions that relate to "smoking" or "cigarette smoke." There might already be a rule that prohibits smoking in units or in common areas. Or there might be a rule that prohibits smoking cigarettes that the board can piggyback on if it also wants to prohibit smoking marijuana.

Also look for language that prohibits owners from creating nuisances.

Amending the COA's Governing Documents

If the COA's governing documents are silent or unclear about smoking marijuana, the board's task will be more challenging. However, the board might still be able to take action to appease the complaining owners.

First, the board might be able to declare marijuana smoke a nuisance. A "nuisance" is something that interferes with someone's use of their property by being irritating, offensive, or dangerous. Many CC&Rs prohibit owners from creating a nuisance. Keeping a detailed record of all complaints, including information about how the marijuana smoke is interfering with other owners use of their condominiums, may help show that marijuana smoke is, in fact, a nuisance.

Another option is to say that since marijuana is unlawful under federal law, smoking marijuana is not permitted in the condominium development. If this is the position your board wants to take, it may need to adopt a rule prohibiting smoking marijuana or amend its CC&Rs to prohibit smoking marijuana. This will require strict compliance with the procedural requirements under both state law and the COA's governing documents.

Other Options to Deal With Marijuana Smoking in a COA

There are other options your COA board can consider that might not be as controversial amongst owners. For example, there could be a better way to filter the air that is shared between units. Or perhaps individual units can be sealed better to prevent the transfer of smoke from one unit to another. Mediation might also provide a forum for individual unit owners to resolve complaints amongst themselves, or for the COA and owners to sit down to address the issue.

Your COA Board Should Obtain Legal Advice

Due to potential liability and legal uncertainty this issue poses, the COA board should seek legal advice from its own attorney. Regardless of what action or inaction the board is considering, legal advice is critical to help make sure the board does not get involved in a lawsuit it does not want.