I serve on the board for my Condominium Owner’s Association (“COA”). Where I live, it is legal to smoke marijuana both for recreational and medical reasons. A few condo owners are expressing concern that marijuana smoke drifts into their units from neighboring units. Some concerns relate to potential health risks associated with the secondhand smoke, while some owners just do not like the odor. Is there anything the COA board can do to stop the drifting smoke?
This issue poses some real challenges for your COA board. Among others, the challenges include:
Given that the legal obligations of COAs in cases like this are unclear, it may be tempting for a board to wait and see how other COAs handle the problem. Sitting back and waiting may 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 may 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 direct link between secondhand cigarette smoke and negative health consequences (such link has not been made with secondhand marijuana smoke), it is possible courts will still require COA boards to take action to protect owners and tenants from secondhand marijuana smoke.
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 may look arbitrary to other owners and, if a lawsuit is filed, the court.
One question that is yet to be answered by the courts is how the Fair Housing Act ("FHA") may impact 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. In the case of a condominium owner with a disability, a COA may 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 may need to be relaxed for an owner who is depressed and needs a companion pet.
In the context of medical marijuana, a condominium owner may claim smoking marijuana treats a disability and that by prohibiting the smoking of marijuana, the COA is violating the FHA. While this issue has not made its way through the courts yet, related issues have. For instance, the Oregon Supreme Court ruled that an employer does not discriminate against an employee when the employer fires the employee for smoking medical marijuana because marijuana is unlawful under federal law. In that case, the employee claimed he had a disability that justified the need to smoke marijuana. It is possible courts will apply a similar rational in the housing context, by ruling that since federal law still makes it unlawful to smoke marijuana, a COA is not obligated to accommodate an owner’s disability by letting that owner smoke marijuana.
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 documents, look for any provisions that relate to “smoking” or “cigarette smoke.” There may already be a rule that prohibits smoking in units or in common areas. Or there may 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.
If the COA’s governing documents are silent or unclear about smoking marijuana, the board’s task will be more challenging. However, the board may still be able to take action to appease the complaining owners.
First, the board may 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.
There are other options your board can consider that might not be as controversial amongst owners. For example, there may 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 may 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.
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.